,transcriber's notes3      ,several     
chapters were omitted from the ,english 
translation of which  this is a         
transcription4 ,the reasons for this are
 given in the  footnotes4    ,words     
originally printed in ,greek are shown  
that way in some versions  of this      
e,book4 ,english transliterations were  
added to all versions by  the           
,transcribers and are enclosed in curly 
braces4    ,other notes will be found at
 the end of this e,book4                
,illustration        ,,universal        
,,classics      ,,library               
,,editor',s      ,,autograph ,,edition  
,,attest3        ,robert ,arnot         
,,managing ,,editor                     
,illustration        ,,universal        
,,classics      ,,library               
,,illustrated      ,,with               
,,photogravures      ,,on ,,japan       
,,vellum      ,,hand ,,painted          
,,reproductions      ,,and ,,full ,,page
      ,,portraits      ,,of             
,,authors        ,m4 ,,walter ,,dunne   

,,publisher      ,,new ,,york ,,and     
,,london              ,,copyright1      
#aija1      ,,by      ,m4 ,,walter      
,,dunne1      ,,publisher               
,,general ,,preface      ,illustration  
,of the ,library of ,universal ,classics
 and ,rare ,manuscripts1 twenty  volumes
 are devoted to the various branches of 
,government1 ,philosophy1  ,law1        
,ethics1 ,english and ,french ,belles   
,lettres1 ,hebraic1 ,ottoman1 and       
,arabian ,literature1 and one to a      
collection of #aej reproductions1  bound
 in ,english vellum1 of the autographs1 
papers and letters of  ,rulers1         
,statesmen1 ,poets1 ,artists and        
,celebrities ranging through  three     
centuries1 crowned by an illuminated    
facsimile of that historic  ,document1  
the ,magna ,carta4    ,the series in    
itself is an epitome of the best in     
,history1 ,philosophy  and ,literature4 
,the great writers of past ages are     
accessible to  readers in general solely
 through translations4 ,it was1         

therefore1  necessary that translations 
of such rare ,classics as are embodied  
in this series should be of the best1   
and should possess exactitude  in text  
and supreme faithfulness in rendering   
the author's thought4  ,under the       
vigilant scholarship of the ,editorial  
,council this has been  accomplished    
with unvarying excellence4 ,the         
classification1 selection  and editing  
of the various volumes have been the    
subject of much  earnest thought and    
consultation on the part of more than   
twenty of the  best known scholars of   
the day4    ,the ,universities of ,yale1
 ,washington1 ,cornell1 ,chicago1       
,pennsylvania1  ,columbia1 ,london1     
,toronto and ,edinburgh are all         
represented among  the contributors1 the
 writers of special introductions1 or   
upon  the consulting staff1 the latter  
including the ,presidents of five  of   
the ,universities mentioned4 ,among     
others who contribute special  essays   
upon given subjects may be mentioned the

 late ,librarian of  the ,british       
,museum1 ,dr4 ,richard ,garnett1 who    
furnishes the essay  introducing        
,evelyn's ,diary4 ,from the ,librarian  
of the ,national  ,library of ,france1  
,lon ,valle1 comes the fascinating      
introduction  to the celebrated ,memoirs
 of the ,duc de ,saint-,simon4 ,the     
scholarly  minister to ,switzerland     
7late ,first ,assistant ,secretary of   
,state71 ,dr4  ,david ,j4 ,hill1 lent   
his wide reading to the brilliant and   
luminous  essay that precedes the       
,rights of ,war and ,peace4 ,the        
resources of the  ,congressional        
,library at ,washington1 as well as of  
foreign libraries1  have all been drawn 
upon in the gigantic task of compressing
 into the  somewhat narrow limits of    
twenty volumes all that was highest1    
best1  most enduring and useful in the  
various ramifications of literature at  
large4    ,the first section of the     
,library is devoted entirely to the     
manuscript  reproductions of the        

autographs of celebrated men in all     
ranks and  phases of life1 covering a   
period of three centuries4 ,they are1 in
  fact1 the ,american edition of the    
reproduction of rare and celebrated     
autographs drawn from the ,british      
,museum that was issued in ,england     
under the editorship of the ,assistant  
,keeper of the ,manuscripts4 ,they      
afford an opportunity to the inquiring  
reader to study the characters  of      
,rulers1 ,statesmen1 ,writers1 and      
,artists through the medium of their    
chirography4    ,it has long been       
recognized that character is traceable  
through  handwriting4 ,so it is         
interesting to discern in the characters
 traced  by ,henry ,,viii the hardened1 
sensual and selfish character of that   
autocrat and polygamist2 in the writing 
of ,thomas ,wolsey1 those crafty  traits
 combined with perseverance and mock    
humility which raised him  wellnigh to  
supremacy in the realm and led him      
finally to a downfall  more complete    

than any we read of in ,english history2
 and in that of  ,charles ,v1 of ,spain1
 the hard-headed continence of character
 and superb  common sense which enabled 
him at the height of glory to retire to 
a  monastery while yet there was        
daylight in life1 as he expressed it1   
for the making of his soul4 ,apart from 
the historical interest of  these       
,documents1 this study of character as  
revealed in them will prove  fascinating
 to thinking minds4    ,the ,magna      
,carta1 greatest of all historical      
charters wrung from the  various kings  
of ,england from ,henry ,i downward1 was
 granted by ,king  ,john at the pressing
 instance of the ,barons and ,commons of
 ,england  toward the end of his        
ill-judged and unfortunate reign4 ,of   
this  ,document1 celebrated and historic
 as it is1 but little is known at       
large4 ,although ,blackstone and other  
prominent lawyers have written  upon it1
 information about it is hard to obtain4
 ,no reproduction of  the original      

,document has ever been offered to      
,american collectors4  ,this facsimile  
is illuminated in colors with the       
shields of many of the  ,peers who      
compelled ,king ,john to accede to their
 demands for civil and  religious       
liberty4 ,the original charter was      
signed at a place called  ,runnymede    
7the ,council ,meadow7 a spot between   
,windsor and ,staines1  on the #aeth of 
,june1 #abae1 about a year before the   
death of ,john4  ,it practically        
guaranteed to the ,commons of ,england  
all the civil  and religious rights they
 enjoy to-day4 ,it dealt with           
testamentary  law as well1 securing to  
widows all the legal rights which they  
to-day possess4 ,it dealt with the      
rights of accused persons2 with         
military service2 with feudal tenure2   
with taxation1 and it limited  the      
heretofore autocratic power of the ,king
 to an extent unknown  before in the    
history of the world4 ,if we except the 
,declaration of  ,independence1 it is   

the most interesting historical record  
of all time4    ,the ,second ,section of
 the ,library 7ten volumes7 is devoted  
to the  presentation of ,government1    
,philosophy1 ,law and ,ethics4 ,this    
section  embraces such names as         
,grotius1 ,plato1 ,sir ,george          
,cornewall ,lewis1 ,adam  ,smith1       
,hamilton1 ,madison1 ,jay1 ,walter      
,bagehot1 ,spinoza1 ,schopenhauer1      
,machiavelli1 as well as those builders 
of ,ideal ,governments1 ,more1  ,bacon1 
,campanella and ,rousseau4    ,of all   
benefactors in ,literature of the human 
race1 ,grotius may  perhaps rank as     
first among his equals4 ,centuries have 
borne witness  to the justness of his   
premises and the wisdom of his          
conclusions4 ,the  principles of        
national law laid down by him are to-day
 accepted as the  axioms of the         
,science4 ,among the nations1 perhaps   
the ,united ,states is  most deeply     
interested in the right administration  
of the principles  affirmed by ,grotius 

in his gigantic work on the ,rights of  
,war and  ,peace1 and it was therefore  
most fitting1 when the recent peace     
conference at ,the ,hague completed the 
great structure of international        
comity1 the foundations of which were   
laid by ,grotius in #afbe1 that a       
silver wreath was laid by the           
representative of the ,united ,states   
upon  the grave of the man to whom the  
,conference owed its initial impulse1   
although at a distance in time of nearly
 three centuries4    ,when the          
,publisher determined1 under the advice 
of his ,editorial  ,council1 to publish 
,grotius1 he found that only two volumes
 of the  first edition were available in
 the ,library of ,congress4 ,at much    
expense and trouble1 he instituted a    
search in ,europe and finally  obtained 
the missing volume1 which he presented  
to the ,congressional  ,library1 where  
it now is4    ,sir ,george ,cornewall   
,lewis's ,government of ,dependencies is
  characterized by the accuracy of its  

information4 ,it is a reliable  text    
book for the guidance of any nation in  
the treatment of its  dependencies and  
colonies4 ,it is a ,classic that will   
survive as long  as colonization remains
 to be done1 and it is remarkable that  
although  it was published for the first
 time sixty years ago1 the illustrations
  afforded by the last two generations  
support the justice of its  principles  
and the exactness of its deductions4    
,adam ,smith's ,essay on ,colonies      
presents an introductory view of  the   
principles governing colonial policy4   
,it is a fitting work to go  hand in    
hand with the greater one of ,sir       
,george ,cornewall ,lewis4 ,it  is of   
practical use to ,american ,statesmen1  
since the ,united ,states  seems at     
present to be entering upon a world-wide
 colonial policy4 ,its  practical       
wisdom1 which has made it a ,classic for
 all times1 finds a  special            
applicability in the conditions of      
to-day1 for ,adam ,smith was  a theorist

 in the best sense of the word1 that is 
to say1 he was a man  whose breadth of  
view1 instead of unfitting him for      
practical details1  enabled him to      
deduce from the lessons of history and  
experience the  right solutions for the 
problems of ,colonial policy4           
,plato's ,republic and ,statesman must  
be regarded to-day not merely  as       
historical records of a by-gone         
philosophy1 but as living1 teaching     
dissertations upon theories which cannot
 fail to awaken in studious  minds the  
highest ideals of life and government4  
,modern problems  stated in the light of
 ,plato's philosophy1 as it is expressed
 in  these books1 will find readier     
solutions when examined in the light  of
 its principles4 ,no student of         
sociology1 of politics1 national and    
municipal1 or of government in all its  
many-sided aspects1 can afford  to be   
without a knowledge of these immortal   
discourses4    ,goldwin ,smith has      
declared that of all expositions of     

constitutional  ,government1 ,the       
,federalist ranks the highest4 ,when    
,hamilton1 ,madison1  and ,jay first    
conceived the idea of printing in the   
common tongue their  ideas upon the     
principles of free government1 they     
unwittingly laid  the foundations of the
 best commentary on the principles of   
popular  government ever written4       
,political science owes to them the most
  important contribution to its         
literature made since its birth4 ,the   
,essays are equally admirable for       
sagacity1 simplicity1 and patriotism1   
and while ,the ,federalist will never be
 read for pleasure1 it contains a  mine 
of wisdom for the student and the       
constitutional lawyer1 and as a  text   
book of political science is without a  
parallel4    ,when ,bagehot issued his  
work on the ,english ,constitution1 it  
was hailed  by the critics as the most  
wonderful and philosophical dissertation
 on  the subject in any language or from
 any pen4 ,john ,stuart ,mill used to   

say that of all great subjects much     
remained to be written1 and that        
especially was this true of the ,english
 ,constitution4 ,bagehot's work1        
although affording the conclusion that  
monarchy in ,england exists as a        
logical necessity1 is so unbiased in its
 premises1 so logical and clear  in its 
deductions1 that this manifest fairness1
 although leading one to  conclusions   
distasteful to a republican mind1 must  
endear him to his  readers4 ,dealing    
with a subject somewhat dry in its      
details1 he invests  inanimate objects  
with so much light that they become     
realities4 ,in the  highest sense he    
combines popularity and scholarship4    
,spinoza's philosophy may be traced both
 to the influence of ,bacon1 his        
predecessor1 and to ,descartes1 his     
contemporary4 ,its combination of       
positivism with the enthusiasm of piety 
characterizes his philosophy  as unique 
in itself1 for while treating man from a
 purely mechanical  standpoint1 it      

asserts that the mechanism itself is    
entirely divine4  ,spinoza was a        
voluntary martyr in the cause of ,free  
,thought4 ,he was at  the same time both
 ,pantheist and ,monist1 yet sincere in 
his devotion to  nature and the ,god of 
nature4 ,his religion naturally made him
 a ,monist1  while his philosophy led   
him to express the ,pantheism that the  
lover of  ,god in ,nature cannot avoid4 
,while he renounced his ,judaism and    
entered  the ranks of the ,christian    
philosophers1 he never received baptism4
 ,he  may be ranked among the greatest  
of the ,german mystics1 whose work had  
such profound influence upon the        
dogmatic ,christianity of a later day4  
,the epithet conferred on him1 namely1  
,god-intoxicated1 summarizes  his whole 
attitude and the character of his       
philosophy better than any  lengthy     
dissertation4    ,when ,schopenhauer    
began to write1 he declared himself a   
true disciple  of ,kant1 but he modifies
 and adapts ,kant's ,critique of ,pure  

,reason  to such an extent that he      
reaches the attitude of opposition4     
,this  attitude he manifests throughout 
all his writings4 ,he is truly an       
,apostle of ,protest1 but in spite of   
his positivist contradictions  and his  
materialistic pantheism1 he opens up a  
mine of suggestions  to the literary and
 philosophical student4 ,in spite of the
 apparent  tragedy due to the conflict  
within him1 we cannot help gathering    
from  ,schopenhauer an immensity of what
 is true1 what is good and what is      
excellent4 ,one thing especially        
noticeable about his writings is that   
while ,german philosophers are often    
ponderous and in fact nebulous1         
,schopenhauer is always clear1 original1
 and readable4    ,to ,machiavelli      
belongs by acclaim the honor of having  
written the  ideal biography of a       
,state4 ,his clear1 straightforward1    
concise  statement of conditions and    
characters as he saw then is a model for
  all writers of record4 ,he was the    

first great ,italian historian1 and  no 
man has ever been more ardent in his    
patriotism or a more earnest  supporter 
of government for and by the people4    
,the greatest tribute to  his inflexible
 honesty of character is the fact that  
while no man had  greater opportunities 
to enrich himself at the cost of the    
,state1 he  died leaving his family in  
the greatest poverty4 ,his varied       
political  experience1 and his assiduous
 study of classic writers1 gave him the 
ability as well as the desire to write  
the history of his native  ,state4 ,time
 has pronounced this ,history to be a   
classic worthy of  preservation1 and the
 perspective of time has also enabled us
 to form a  juster and greater estimate 
of its author4    ,the ,ideal ,republics
 and ,empires that have been constructed
 from time to  time by political        
dreamers have all the attractiveness of 
works like  ,pilgrim's ,progress or     
,gulliver's ,travels1 combined with a   
philosophy  and political insight that  

give them a double claim to be          
considered  ,classics4 ,modern progress 
may be more deeply indebted than we can 
estimate to the fantasies and airy      
castles of men like ,rousseau1 ,more1   
and ,campanella4 ,the four ,ideal       
,republics or ,governments described in 
this volume are perhaps the most famous 
of all1 since they rank not  only as    
great creations of the imagination but  
as literature of the  highest class2 and
 their writers have a further claim upon
 posterity  from the fact that they     
helped to make history4    ,the ,third  
and concluding ,section of the ,library 
deals with that  tremendous range of    
world-wide literature which we call1 for
 want of  a better name1 ,belles        
,lettres4 ,goethe contributes his       
brilliant and  sagacious observations on
 men and things as he communicated them 
to  ,eckerman4 ,landor1 of whom         
,swinburne has said that ,milton alone  
stands  higher1 both in prose and verse1
 furnishes us with his ,classical       

,conversations4 ,montesquieu and        
,goldsmith are drawn on for their       
,persian and ,chinese ,letters4 ,lord   
,chesterfield gives us the irony and    
hard-headed criticism combined with     
worldly common sense contained in  the  
,letters to ,his ,son1 and the various  
names best known in ,french  and        
,english ,belles ,lettres yield what is 
greatest in them4 ,ottoman  ,literature1
 comprising ,arabian1 ,persian1 and     
,hebraic ,poems1 affords  the reader an 
insight into the romantic and dramatic  
character of the  ,oriental4 ,the       
,dabistan1 possibly the most            
extraordinary book ever  written in the 
,east1 finds itself at home in this     
section1 while the  ,literature of the  
,hebrews is ideally represented in that 
most wonderful  of all monuments of     
human wisdom1 and perhaps folly1 the    
,talmud1  together with the basis of    
modern metaphysics1 the ,kabbala4       
,the ,sufistic ,quatrains of ,omar      
,khayyam are here for the first time    

presented complete in a collection of   
this order4 ,the various editions  of   
,fitzgerald are reprinted1 collated1 and
 to them is added the  valuable         
,heron-,allen analysis of ,fitzgerald's 
sources of inspiration4  ,the very rare 
,whinfield version is found here        
complete2 and for the  first time in    
,english appears ,m4 ,nicolas' ,french  
transcription of the  ,teheran          
,manuscript4 ,it is safe to say that any
 lover of ,omar wishing to  add to his  
collection the versions here quoted     
would be compelled to  disburse more    
than one hundred times the amount this  
book will cost him4    ,while the       
,library of ,universal ,classics does   
not claim to be the  final condensation 
of the treasure houses of human         
philosophy and  lore1 whether practical 
or ideal1 it does most emphatically     
assert  its right to be called the most 
useful1 most attractive1 and most       
representative selection1 within the    
limits assigned to it1 of those         

world-masterpieces of literature which  
men1 for lack of a more luminous  name1 
call ,classics4            ,robert      
,arnot      ,illustration3 ,,hugo       
,,grotius    ,from an ,original         
,painting4          ,illustration       
,,the ,,rights ,,of      ,,war ,,and    
,,peace        ,,including ,,the        
,,law ,,of ,,nature      ,,and ,,of     
,,nations        ,,translated ,,from    
,,the ,,original ,,latin ,,of           
,,grotius        ,,with ,,notes ,,and   
,,illustrations ,,from      ,,political 
,,and ,,legal ,,writers        ,,by     
,a4 ,c4 ,,campbell1 ,a4 ,m4             
,,with ,,an ,,introduction ,,by         
,,david ,j4 ,hill1      ,assistant      
,secretary of ,state of the ,united     
,states          ,m4 ,,walter ,,dunne1  
,,publisher      ,,new ,,york  ,,london 
,,copyright1 #aija1      ,,by      ,m4  
,,walter ,,dunne1      ,,publisher      
,,illustrations        ,,hugo ,,grotius 
,frontispiece        ,from an original  
painting4      ,,war                    

#aji        ,by ,gari ,melchers1        
,from a panel painting in ,library of   
,congress4      ,,peace                 
#bac        ,by ,gari ,melchers1        
,from a panel painting in ,library of   
,congress4      ,,war ,,and ,,peace     
#cjg        ,frontispiece to a rare     
edition of ,grotius4          ,,contents
               ,,book ,i4      ,,chapter
                                        
,,page             ,introduction        
#a          ,i4 ,on ,war and ,right     
#ag         ,,ii4 ,inquiry into the     
,lawfulness of ,war                     
#ca        ,,iii4 ,the ,division of ,war
 into ,public and ,private1 and the     
,nature of ,sovereign ,power            
#ee               ,,book ,,ii4          
,i4 ,defense of ,person and ,property   
#gc         ,,ii4 ,the ,general ,rights 
of ,things                              
#he        ,,iii4 ,on the ,original     
,acquisition of ,things1 and the ,right 
of             ,property in ,seas and   
,rivers                                 

#ajc         ,,iv4 ,title to ,desert    
,lands by ,occupancy1 ,possession1 and  
,prescription                           
#aji         ,,ix4 ,in ,what ,cases     
,jurisdiction and ,property ,cease      
#aag          ,x4 ,the ,obligation      
,arising from ,property                 
#abc         ,,xi4 ,on ,promises        
#aca        ,,xii4 ,on ,contracts       
#add       ,,xiii4 ,on ,oaths           
#afj         ,,xv4 ,on ,treaties and on 
,engagements ,made by ,delegates        
,exceeding ,their ,powers               
#aff        ,,xvi4 ,the ,interpretation 
of ,treaties                            
#agf       ,,xvii4 ,on ,damages         
,occasioned by ,injury1 and the         
,obligation to             ,repair ,them
                                        
#aie      ,,xviii4 ,on the ,rights of   
,embassies                              
#bjb        ,,xix4 ,on the ,right of    
,burial                                 
#bac         ,,xx4 ,on ,punishments     
#bbj        ,,xxi4 ,on the              

,communication of ,punishment           
#bef       ,,xxii4 ,on the ,unjust      
,causes of ,war                         
#bfg      ,,xxiii4 ,on ,doubtful ,causes
                                        
#bgd       ,,xxiv4 ,precautions against 
,rashly ,engaging in ,war1 ,even upon   
,just ,grounds                          
#bhj               ,,book ,,iii4        
,i4 ,what ,is ,lawful in ,war           
#bij         ,,ii4 ,in ,what ,manner the
 ,law of ,nations ,renders the ,property
 of             ,subjects ,answerable   
for the ,debts of ,sovereigns4 ,the     
,nature of ,reprisals                   
#cjg        ,,iii4 ,on ,just or ,solemn 
,war ,according to the ,law of ,nations 
on             ,declarations of ,war    
#cad         ,,iv4 ,on the ,right of    
,killing an ,enemy in ,lawful ,war and  
,committing ,other ,acts of ,hostility  
#cbc          ,v4 ,on the ,right to ,lay
 ,waste an ,enemy's ,country and ,carry 
,off             ,his ,effects          
#ccb         ,,vi4 ,on the ,acquisition 

of ,territory and ,property by ,right of
             ,conquest                  
#ccd        ,,vii4 ,on the ,right over  
,prisoners of ,war                      
#cde       ,,viii4 ,on ,empire over the 
,conquered                              
#cdh         ,,ix4 ,of the ,right of    
,postliminium                           
#cea         ,,xi4 ,the ,right of       
,killing ,enemies1 in ,just ,war1 to be 
,tempered             with ,moderation  
and ,humanity                           
#cei        ,,xii4 ,on ,moderation in   
,despoiling an ,enemy's ,country        
#cfe       ,,xiii4 ,on ,moderation in   
,making ,captures in ,war               
#cfi         ,,xv4 ,on ,moderation in   
,acquiring ,dominion                    
#cgb        ,,xvi4 ,on ,moderation with 
,respect to ,things ,excluded from the  
,right of ,postliminium by the ,law of  
,nations               #cge             
,,xvii4 ,respecting ,those ,who ,are    
,neutral in ,war                        
#cgg        ,,xix4 ,on ,good ,faith     

between ,enemies                        
#cgi         ,,xx4 ,on the ,public      
,faith by ,which ,war ,is ,concluded2   
,comprising             ,treaties of    
,peace1 and the ,nature of ,arbitration1
             ,surrender1 ,hostages1     
,pledges                                
#che        ,,xxi4 ,on ,faith ,during   
the ,continuance of ,war1 on ,truces1   
,safe-,conducts1 and the ,redemption of 
,prisoners            #djc       ,,xxii4
 ,on the ,faith of ,those ,invested with
 ,subordinate ,powers             in    
,war                                    
#daa       ,,xxiv4 ,on ,tacit ,faith    
#dae        ,,xxv4 ,conclusion          
#dag               ,,index              
#dai          ,,introduction    ,,the   
,,work ,,and ,,influence ,,of ,,hugo    
,,grotius4      ,the claims of the great
 work of ,grotius1 ,de ,jure ,belli ac  
,pacis1  to be included in a list of    
,universal ,classics1 do not rest upon  
the felicity of style usually expected  
in a classic composition4  ,his work is 

marked by frequent rhetorical           
deformities1 tedious and  involved forms
 of reasoning1 and perplexing           
obscurities of phraseology  which       
prevent its acceptance as an example of 
elegant writing4  ,notwithstanding these
 external defects1 it is1 nevertheless1 
one of the  few notable works of genius 
which1 among the labors of centuries1   
stand  forth as illustrations of human  
progress and constitute the precious    
heritage of the human race4    ,if it is
 not literature in the technical sense1 
the masterpiece of  ,grotius is         
something higher and nobler1--a triumph 
of intelligence  over irrational        
impulses and barbarous propensities4    
,its publication  marks an era in the   
history of nations1 for out of the chaos
 of lawless  and unreasoning strife it  
created a system of illuminating        
principles  to light the way of         
sovereigns and peoples in the paths of  
peace and  general concord4      ,i4    
,,the ,,reign ,,of ,,war4    ,the idea  

of peaceful equity among nations1 now   
accepted as a human  ideal1 though still
 far from realization1 was for ages a   
difficult1 if  not an impossible1       
conception4 ,all experience spoke       
against it1 for war  was the most       
familiar phenomenon of history4         
,among the ,greek city-states1 a few    
temporary leagues and federations  were 
attempted1 but so feeble were the bonds 
of peace1 so explosive  were the        
passions which led to war1 that even    
among the highly  civilized ,hellenic   
peoples1 community of race1 language1   
and religion  was powerless to create a 
,greek nation4 ,it was reserved for the 
military genius of ,alexander the       
,great1 at last1 by irresistible        
conquest1 to bring the ,greek ,empire   
into being1 to be destroyed in turn  by 
superior force4    ,the ,roman ,empire  
almost achieved the complete political  
unity of  ,europe1 and bound parts of   
three continents under one rule1 but the
  corruption of the military power which

 held it together led to its  inevitable
 dismemberment4    ,after the conflicts 
of the barbaric kingdoms which followed 
the  dissolution of the ,western ,empire
 were ended by the predominance of the  
,frankish monarchy1 the world believed  
that the ,pax ,romana was to be         
restored in ,europe by the hand of      
,charles the ,great2 but the disruptive 
forces were destined to prevail once    
more1 and the ,holy ,roman ,empire      
never succeeded in reviving the power of
 ancient ,rome4 ,and thus the  dream of 
a universal monarchy1 of a central      
authority able to preside  over kings   
and princes1 adjusting their            
difficulties1 and preserving  the peace 
between them1 was at last proved futile4
    ,in each of the great national      
monarchies that had already risen or    
were  still rising on the ruins of      
imperial dominion1 particularly in      
,france1  ,england1 ,holland1 and the   
,states of ,germany1 a continuous       
internal  conflict over questions of    

religion complicated the bitterness and 
destructiveness of foreign wars until   
,europe was reorganized by the  ,peace  
of ,westphalia1 in #afdh4    ,it was in 
the midst of these wars that ,grotius   
was born4 ,he saw his own  country      
rising from a baptism of blood and all  
,europe rent and torn by  the awful     
struggle of the ,thirty ,years' ,war1 in
 the midst of which his  great work was 
written and to whose conclusion it      
served as a guide  and inspiration4 ,the
 ,empire1 dismembered1 had been reduced 
to almost  complete impotence1 the      
,church had been disrupted1 and no      
international  authority was anywhere   
visible4 ,amid the general wreck of     
institutions  ,grotius sought for light 
and guidance in great principles4       
,looking  about him at the general havoc
 which war had made1 the nations        
hostile1  the faith of ages shattered1  
the passions of men destroying the      
commonwealths which nourished them1 he  
saw that ,europe possessed but  one     

common bond1 one vestige of its former  
unity1--the human mind4 ,to  this he    
made appeal and upon its deepest        
convictions he sought to plant  the ,law
 of ,nations4      ,,ii4 ,,the          
,,predecessors ,,of ,,grotius4    ,it is
 historically accurate to say1 that1    
until formulated by ,grotius1  ,europe  
possessed no system of international    
law4 ,others had preceded  him in       
touching upon certain aspects of the    
rights and duties of  nations1 but none 
had produced a system comparable to his4
    ,the earliest attempt to formulate  
recognized international customs  was   
the formation of the early maritime     
codes1 rendered necessary by  the       
expansion of medival commerce from the  
end of the eleventh to  the end of the  
sixteenth century1 such as the ,jugemens
 d' ,olron1  adopted by the merchants of
 ,france1 ,england1 and ,spain1 and     
reissued  under other names for the     
merchants of ,the ,netherlands and the  
,baltic4  ,the ,consolato del ,mare1 a  

more elaborate compilation1 was made1   
apparently at ,barcelona1 about the     
middle of the fourteenth century1  and  
accepted generally by the traders of the
 chief maritime powers4 ,it  was in the 
cradle of commerce1 therefore1 that     
international law awoke  to             
consciousness4    ,as the ,church was   
often intrusted with the task of        
pacification1 it  is but natural to look
 among her representatives for the      
earliest  writers on the laws of        
international relations4 ,it is1 in     
fact1 among  the theological moralists  
that we find the first students of this 
subject4 ,as early as #aefd1 a ,spanish 
theologian1 ,vasquez1 conceived  of a   
group of free states with reciprocal    
rights regulated by jus  naturale et    
gentium1 without regard to a            
world-power1 either imperial  or        
ecclesiastical4 ,in #afab1 ,saurez      
pointed out that a kind of customary    
law had arisen from the usages of       
nations1 and distinctly described a     

society of interdependent states bound  
by fundamental principles of  justice4  
,at the close of the fifteenth and the  
beginning of the sixteenth  centuries1 a
 series of circumstances arose          
necessitating the extension  of         
jurisprudence beyond its ancient        
boundaries1 and thus tending to  produce
 a group of international jurists4      
,among the juristic writers  of this    
time are ,balthazar ,ayala1 a ,spanish  
jurisconsult1 who died in  #aehd1 having
 written in a historico-judicial spirit 
on the subject  of war in his ,de ,jure 
et ,officiis ,belli2 ,conrad ,brunus1 a 
,german  jurist1 who wrote of the rights
 and duties of ambassadors in his  ,de  
,legationibus1 published in #aedh2 and  
pre-eminent above all1  ,albericus      
,gentilis1 an ,italian professor of     
jurisprudence and lecturer  at ,oxford1 
a writer of force and originality1 who  
published his ,de  ,legationibus in     
#aehc and his ,de ,jure ,belli in #aehi4
      ,,iii4 ,,the ,,life ,,and         

,,personality ,,of ,,grotius4    ,,hugo 
,,grotius1 to use the ,latin form of his
 name by which he is best  known1 or    
,hugo de ,groot as he is called in      
,holland1 descended from a  race of     
scholars and magistrates1 was born at   
,delft1 on ,april #ajth1  #aehc4 ,his   
family history has been related with    
much detail by ,de  ,burigny1 in his    
,vie de ,grotius1 published in ,french  
at ,amsterdam  in #aged2 and by         
,vorsterman van ,oyen1 in his ,hugo de  
,groot en ,zijn  ,gesclacht1 a complete 
genealogy in ,dutch1 published at       
,amsterdam  in #ahhc1 which gives the   
descendants of ,grotius down to the     
present  generation4 ,his origin is     
traced from a ,french gentleman1 ,jean  
,cornets1  who took up his residence in 
,the ,netherlands in #adjb4 ,his        
descendant1  ,cornelius ,cornets1       
married the daughter of a burgomaster of
 ,delft on  condition that the future   
children of this marriage should bear   
the  name of their mother's family1 in  

order to perpetuate the distinction     
which it had achieved4 ,the maternal    
name imposed by ,cornelius ,cornets's   
,dutch father-in-law1 ,dirk van         
,kraayenburg de ,groot1 was de ,groot1  
meaning the ,great1 and is said to have 
been bestowed for signal  services      
rendered to his country by the first who
 had borne it four  hundred years       
before4 ,from this marriage sprung a    
,hugo de ,groot1  distinguished for his 
learning in ,greek1 ,latin1 and ,hebrew 
and five  times burgomaster of his      
native city4 ,his eldest son1           
,cornelius1 was a  noted linguist and   
mathematician who studied law in ,france
 and received  high office in his own   
country1 afterward becoming a professor 
of law  and many times rector of the    
,university of ,leyden4 ,another son1   
,john  de ,groot1 the father of ,hugo   
,grotius1 studied there under the famous
  ,lipsius1 who speaks of him with the  
highest commendation4 ,four times       
burgomaster of ,delft1 ,john de ,groot  

became curator of the ,university of    
,leyden1 a position which he filled with
 great dignity and honor4    ,in his    
earliest years the young ,hugo gave     
evidence of marked and varied  ability4 
,at eight he wrote ,latin verses which  
betrayed poetic talent2  at twelve he   
entered the ,university where he became 
a pupil of that  prince of scholars1    
,joseph ,scaliger1 who directed his     
studies2 and  at fifteen he defended    
with the greatest applause ,latin theses
 in  philosophy and jurisprudence4 ,his 
fame as a prodigy of diversified        
learning spread far and wide1 and great 
scholars declared they had  never seen  
his equal4    ,grotius had won celebrity
 even in foreign lands when1 in #afjj1  
at the  age of seventeen1 he was        
admitted to the bar4 ,the youthful      
prodigy  had already accompanied the    
,grand ,pensionary1 ,john of            
,oldenbarneveld  on a special embassy to
 ,france1 where he was presented to     
,henry ,,iv1  who bestowed upon him his 

portrait together with a gold chain1 and
  graciously called him ,the ,miracle of
 ,holland4 ,at ,orleans he was made  a  
,doctor of ,laws4    ,married in #afji  
to ,marie van ,reigersberg1 whose       
devotion was worthy of  his deep        
affection1 and loaded with public       
honors1 having been named  the official 
historian of the ,united ,provinces and 
the advocate-general  of two provinces1 
,holland and ,zeeland1 ,grotius set his 
hand to a work  entitled ,mare ,librum1 
in which he defended the freedom of the 
sea  and the maritime rights of his     
country against the arrogant pretensions
  of the ,portuguese in suppressing the 
commerce of other nations in  ,eastern  
waters1--a treatise destined to become  
still more celebrated in  the history of
 international law by ,selden's reply1  
,mare ,clausum1  written in #afce4      
,next1 turning his attention to the     
history of ,the  ,netherlands1 he       
devoted himself for a time to his       
,annals of the ,war of  ,independence4  

,in #afac1 ,grotius added to his laurels
 as poet1 jurist1 and historian  by     
entering the field of politics1 and he  
was appointed ,pensionary of  ,rotterdam
 upon the condition that he should      
continue in office during  his own      
pleasure4 ,it was during a visit to     
,england upon a diplomatic  mission in  
this same year that he met the great    
scholar ,isaac ,casaubon1  who said in a
 letter to ,daniel ,heinsius3 ,i cannot 
say how happy ,i  esteem myself in      
having seen so much of one so truly     
great as ,grotius4  ,a wonderful man6   
,this ,i knew him to be before ,i had   
seen him2 but the  rare excellence of   
that divine genius no one can           
sufficiently feel who  does not see his 
face and hear him speak4 ,probity is    
stamped on all his  features4           
,closely related by personal friendship 
as well as by his official  duties to   
the ,grand ,pensionary1 ,john of        
,oldenbarneveld1 ,grotius was  destined 
to share with that unfortunate patriot  

the proscription and  punishment which  
,maurice of ,orange visited upon the two
 confederates  in the defense of        
religious tolerance4 ,risking all as the
 apostles of  peace1 they were soon     
condemned to be its martyrs4            
,oldenbarneveld1  having incurred the   
bitter hatred of the ,stadtholder1 was  
condemned  to death by decapitation on  
,may #abth1 #afai4 ,grotius1 less       
offensive  to ,maurice on account of his
 youth and his gracious personality1 was
  sentenced six days later to perpetual 
imprisonment4 ,on the #fth of ,june1    
#afai1 he was incarcerated in the       
fortress of ,loevestein4    ,rigorously 
treated at first1 his docility and      
resignation soon won the  respect and   
affection of his keepers4 ,writing      
materials and books were  in time       
accorded him1 and finally1 on condition 
that she would continue  to share his   
captivity1 he was granted the presence  
of his wife4 ,the  studious prisoner and
 his devoted companion completely       

disarmed all  suspicion of an intention 
to escape1 and the ponderous chest in   
which  books came and went continued to 
bring periodic consolation to the  mind 
of the busy scholar4 ,a treatise on the 
truth of the ,christian  religion1 a    
catechism for the use of his children1 a
 digest of ,dutch  law1 and other       
compositions served to occupy and       
alleviate the weary  months of          
confinement1 until one day when the time
 seemed opportune  ,madame ,grotius     
secretly inclosed her husband in the    
great chest and  it was borne away by   
two soldiers4 ,descending the stone     
steps of the  prison the bearers        
remarked that the trunk was heavy enough
 to contain  an ,arminian1 but ,madame  
,grotius's jest on the heaviness of     
,arminian  books smoothed over the      
suspicion1 if one was really            
entertained1 and  the great jurist was  
sent in the chest safe to ,gorcum1      
attended by a  faithful domestic1 where 
in the house of a friend the prisoner   

emerged  without injury and in the guise
 of a stone mason hastened to ,antwerp4 
,from ,antwerp he took refuge in        
,france1 where he arrived in ,april1    
#afba1  and was joined by his faithful  
wife at ,paris in the following         
,october4    ,the bitterness of exile   
was now to be added to the miseries of  
imprisonment1 for ,grotius was not only 
excluded from ,the ,netherlands1  but in
 extreme poverty4 ,his letters reveal   
his anguish of spirit at  this period1  
but a generous ,frenchman1 ,henri de    
,mme1 placed his  country house at      
,balagni at his disposition1 and there1 
supported by  a small pension1 which    
,louis ,,xiii had graciously accorded   
him1 though  irregularly and tardily    
paid1 ,grotius commenced his great work1
 ,de  ,jure ,belli ac ,pacis1 in the    
summer of #afbc4    ,much speculation   
has been indulged in regarding the      
causes which led  to the composition of 
this masterpiece1 but a recent discovery
 has  rendered all this superfluous1 as 

well as the ascription of special  merit
 to the ,counselor ,peyresc for         
suggesting the idea of the work4 ,it    
is1 indeed1 to the pacific genius of    
,grotius more than to all other  causes 
that the world owes the origin of his   
great work2 for it sprang  from his     
dominant thought1 ever brooding on the  
horrors of war and  the ways of peace1  
during more than twenty years1 and never
 wholly  satisfied till its full        
expression was completed4    ,in the    
winter of #afjd1 there had sprung out of
 his legal practice the  idea of a      
treatise entitled ,de ,jure ,praedae1   
fully written out1  but never printed by
 its author4 ,the manuscript remained   
unknown by  all his biographers until it
 was brought to light and printed under 
the auspices of ,professor ,fruin at    
,the ,hague in #ahfh4 ,this interesting 
document proves that not only the       
general conception but the entire  plan 
and even the arrangement of the ,de     
,jure ,belli ac ,pacis were  in the mind

 of ,grotius when he was only twenty-one
 years of age4 ,the  difference between 
the earlier work and the later is       
chiefly one of  detail and              
amplification1 the difference which     
twenty years of reading1  experience1   
meditation and maturity of faculty would
 inevitably create4    ,the curious may 
find in his letters the almost daily    
chronicle of his  progress with his book
 to the time of its publication after   
excessive  labors lasting more than a   
year4 ,in ,march1 #afbe1 the printing of
 the  first edition1 which had occupied 
four months1 was completed and copies   
were sent to the fair at ,frankfort4    
,his honorarium as author consisted  of 
two hundred copies1 many of which he    
presented to his friends4 ,from  the    
sale of the remainder at a crown each1  
he was not able to reimburse  his       
outlay4 ,in the following ,august he    
wrote to his father and brother  that if
 he had their approbation and that of a 
few friends1 he would  have no cause for

 complaint but would be satisfied4      
,louis ,,xiii1 to  whom the work was    
dedicated1 accepted the homage of the   
author and  a handsomely bound copy1 but
 failed to exercise the grace customary 
with monarchs by according a            
gratification4 ,at ,rome1 the treatise  
was  proscribed in the index in #afbg4  
,almost penniless and suffering from    
his protracted toil1 ,grotius seemed    
destined to neglect and oblivion1  yet  
from his exile he wrote to his brother3 
,it is not necessary to ask  anything   
for me4 ,if my country can do without   
me1 ,i can do without her4  ,the world  
is large enough4444    ,invited to enter
 the service of ,france by ,richelieu1  
,grotius would not  accept the          
conditions which the ,cardinal wished to
 impose1--such at  least is the         
inevitable inference from his letters4  
,his pension was not  paid and his      
circumstances became so serious that one
 of his children  had but a single coat4
 ,at length1 pushed to the utmost       

extremity  of want and instigated by his
 energetic wife1 ,grotius resolved to   
return to ,holland4 ,driven from        
,rotterdam to ,amsterdam1 where he      
hoped to settle down as a lawyer1 the   
,states ,general twice ordered  his     
arrest and named a price for his        
delivery to the authorities4  ,the new  
,stadtholder1 ,frederick ,henry1 who1   
before succeeding his  brother ,maurice1
 had written kindly to ,grotius after   
his escape from  imprisonment1 now      
approved his proscription4 ,abandoned by
 his prince  as well as by his          
countrymen1 ,grotius once more turned   
his face toward  exile and set out for  
,hamburg4      ,,iv4 ,,the ,,work ,,of  
,,grotius4    ,it may be of interest at 
this point in the career of ,grotius to 
describe briefly the character of the   
great work which was soon to win  for   
him a new celebrity1 and materially     
change his prospects in life4    ,the   
inspiration of his ,de ,jure ,belli ac  
,pacis was the love of  peace1 yet he   

was far from being one of those         
visionaries who totally  condemn the use
 of armed force and proscribe all war as
 wrong and  unnecessary4 ,on the        
contrary1 he seeks to discover when1    
how1 and by  whom war may be justly     
conducted4    ,his plan of treatment is 
as follows3--      ,in the ,first ,book1
 he considers whether any war is just1  
which leads    to the distinction       
between public and private war1 and this
 in turn    to a discussion of the      
nature and embodiment of sovereignty4   
,in the ,second ,book1 the causes from  
which wars arise1 the nature    of      
property and personal rights which      
furnish their occasions1 the            
obligations that pertain to ownership1  
the rule of royal succession1    the    
rights secured by compacts1 the force   
and interpretation of    treaties1 and  
kindred subjects are examined4      ,in 
the ,third ,book1 the question is asked1
 ,what is lawful war8    which prepares 
for the consideration of military       

conventions and the    methods by which 
peace is to be secured4    ,from the    
authority of the ,empire and the        
,church1 no longer effectual as  an     
international agency1 ,grotius appeals  
to ,humanity as furnishing the  true law
 of nations4 ,beginning with the idea   
that there is a kinship  among men      
established by nature1 he sees in this  
bond a community  of rights4 ,the       
society of nations1 including as it does
 the whole  human race1 needs the       
recognition of rights as much as mere   
local  communities4 ,as nations are but 
larger aggregations of individuals1     
each with its own corporate coherence1  
the accidents of geographic  boundary do
 not obliterate that human demand for   
justice which springs  from the nature  
of man as a moral being4 ,there is1     
therefore1 as a  fundamental bond of    
human societies a ,natural ,law1 which1 
when properly  apprehended1 is perceived
 to be the expression and dictate of    
right  reason4 ,it is thus upon the     

nature of man as a rational intelligence
  that ,grotius founds his system of    
universal law4    ,as this law of human 
nature is universally binding wherever  
men exist1  it cannot be set aside by   
the mere circumstances of time and      
place1  whence it results that there is 
a law of war as well as a law of peace4 
,as this law applies to the commencement
 of armed conflicts1 war is  never to be
 undertaken except to assert rights1 and
 when undertaken  is never to be carried
 on except within the limits of rights4 
,it is  true that in the conflict of    
arms laws must be silent1 but only      
,,civil  laws1 which govern in times of 
peace4 ,those laws which are            
,,perpetual1  which spring from the     
nature of man as man1 and not from his  
particular  civil relations1 continue   
even during strife and constitute the   
laws of  war4 ,to deny these1 or to     
disobey them1 implies a repudiation of  
human  nature itself and of the divine  
authority which has invested it with    

rights and obligations4 ,to disavow the 
imperative character of these  perpetual
 laws1 is to revert to barbarism4    ,it
 is necessary1 however to distinguish   
between ,natural ,law1 that  principle  
of justice which springs from man's     
rational nature1 and  ,conventional     
,law1 which results from his agreements 
and compacts4  ,natural ,law remains    
ever the same1 but institutions change4 
,while the  study of abstract justice1  
apart from all that has its origin in   
the  will or consent of men1 would      
enable us to create a complete system of
  jurisprudence1 there is another source
 which must not be neglected1  since men
 have established the sanctity of       
certain rules of conduct by  solemn     
convention4    ,the ,law of ,nations    
does not consist1 therefore1 of a mere  
body of  deductions derived from general
 principles of justice1 for there is    
also a body of doctrine based upon      
,,consent2 and it is this system of     
voluntarily recognized obligations which

 distinguishes international            
jurisprudence from mere ethical         
speculation or moral theory4 ,there are 
,,customs of nations as well as a       
universally accepted law of nature1 and 
it is in this growth of practically     
recognized rules of procedure that  we  
trace the evolution of law              
international--jus inter gentes--as a   
body of positive jurisprudence4    ,it  
is evident that the mind of ,grotius is 
continually struggling to  establish a  
science upon this positive basis1 and it
 is this which  gives a distinctive     
character to his effort4 ,the great     
writers of all  ages are cited with a   
superfluous lavishness1 not so much to  
support  his claims by an aggregation of
 individual opinions--still less to     
display his erudition1 as his critics   
have sometimes complained--as to  give a
 historic catholicity to his doctrine by
 showing that the laws  he is           
endeavoring to formulate have1 in fact1 
been accepted in all  times and by all  

men4 ,for this purpose also1 he makes   
abundant use of  the great authorities  
on ,roman ,law1 whose doctrines and     
formulas were  certain to carry         
conviction to the minds of those whom he
 desired to  convince4    ,it is        
needless1 perhaps1 to point out that the
 work of ,grotius is  not and could not 
be a work of permanent authority as a   
digest of  international law4 ,his own  
wise appreciation of the positive and   
historical element--the authority       
derived from custom--should exempt  him 
from the pretense of absolute finality4 
,it is the ,book of ,genesis  only that 
he has given us1 but it is his          
indefeasible distinction to  have       
recorded the creation of order out of   
chaos in the great sphere of            
international relationship1 justly      
entitling him to the honor accorded  to 
him by the spontaneous consent of future
 times as the ,father of  ,international
 ,jurisprudence4    ,it is not difficult
 after more than three centuries of     

thought and  experience to point out the
 defects in his doctrine4 ,if he        
justifies  slavery1 it is not without   
ingenuity2 for1 he argues1 if a man may 
sell  his labor1 why not his liberty8   
and if the conqueror may impose his     
will upon the property of the           
vanquished1 why not also upon his       
person8  ,if he identifies sovereignty  
with supreme power without any adequate 
conception of its ethical basis1 he is  
at least as advanced in his  thinking as
 the conceptions of his time1 which had 
not yet grasped the  idea of the state  
as a moral organism4 ,if he has no      
adequate notion  of neutrality1         
believing it to be the duty of a nation 
to enlist its  energies for what it     
deems the right side1 rather than to    
disavow all  responsibility for actions 
foreign to its own interests1 he is at  
least  supported in this by the opinion 
of the multitude even at the present    
time2 and even among jurists the modern 
conception of neutrality is  hardly a   

century old4 ,if the new schools of     
jurisprudence make light  of ,natural   
,law as a foundation of public and      
private rights1 it is  not certain that 
,grotius may not yet be vindicated as   
representing a  doctrine at least as    
clear as any other which has been       
substituted for  it4 ,but1 finally1 to  
all these criticisms it may be answered1
 that  no great thinker can be justly   
estimated except in relation to his     
predecessors and contemporaries4        
,measured by these1 ,grotius stands     
alone among the jurists of his century  
for originality of thought and  power of
 exposition4      ,v4 ,,the ,,influence 
,,of ,,grotius',s ,,work4    ,it was    
during his sojourn in ,hamburg in #afcc1
 eight years after the  publication of  
his ,de ,jure1 and while he was still   
suffering from  painful pecuniary       
embarrassment1 that ,europe suddenly    
awoke to a sense  of his importance2    
and1 almost at one time1 ,poland1       
,denmark1 ,spain1  ,england1 and ,sweden

 all extended friendly invitations      
urging him to  enter into their public  
service4 ,his fame as a jurist had      
become  international and1 rudely       
repelled by his native ,holland1 he     
became  the center of ,european         
interest4 ,gustavus ,adolphus had placed
 the work  of ,grotius along side his   
,bible under his soldier's pillow1 as he
  prosecuted his campaigns in the       
,thirty ,years' ,war4 ,the first edition
  of that work1 written in ,latin1 the  
cosmopolitan language of learned        
,europe1 had been quickly exhausted and 
widely scattered4 ,another had  soon    
been called for at ,paris1 but the death
 of ,buon1 the publisher1  created      
obstacles to its appearance4 ,a second  
edition had appeared at  ,frankfort in  
#afbf1 another at ,amsterdam in #afca1  
and still another  with notes by the    
author in #afcb4 ,the book had aroused  
the thought of  kings as well as of     
scholars1 and in the circles of high    
influence  everywhere in ,europe the    

name of ,grotius had become well known4 
,his  book had excited the most opposite
 sentiments and awakened the most       
contradictory judgments1 but among      
lawyers and statesmen its reception  was
 from the first generally marked by     
admiration4 ,in spite of exile1         
poverty1 and misfortune1 ,grotius had   
become a ,european celebrity and  was   
about to enter into the reward of his   
labors4 ,he had created a code  for war 
and a programme of peace1 and henceforth
 no statesman could  afford to neglect  
him4    ,gustavus ,adolphus1 the king of
 ,sweden1 before his death on the       
battlefield of ,ltzen1 had commended    
,grotius to his great ,chancellor1      
,oxenstiern4 ,by the death of ,gustavus 
the ,chancellor had1 in #afcc1  recently
 come into the regency of the kingdom at
 a critical moment  when a retreat from 
the bitter contest with the ,empire     
seemed to be  foredoomed unless         
prevented by the support and friendship 
of ,france4  ,recalling the commendation

 of the late king1 ,oxenstiern sought   
and found in ,grotius an ambassador of  
,sweden to negotiate a new              
,franco-,swedish alliance4 ,accepting   
this appointment in #afcd1 ,grotius     
arrived at ,paris on his diplomatic     
mission on ,march #b;d1 #afce4          
,richelieu1 having failed to draw the   
great jurist into the orbit of his      
influence as a satellite1 resented his  
appearance in a character so            
influential and honorable as that of    
ambassador of ,sweden1 and ,grotius     
made little progress in his negotiation4
 ,preoccupied with literature1  he took 
more interest in the composition of a   
sacred tragedy on ,the  ,flight into    
,egypt than in reminding ,france of the 
existing treaty  of ,heilbronn or       
consolidating the new ,franco-,swedish  
alliance4 ,where  ,grotius the theorist 
failed1 ,oxenstiern1 the practical      
statesman1 by  a few dexterous strokes  
of diplomacy during a brief visit to    
,paris1  easily succeeded2 and the      

ambassador's mission was simplified to  
the  rle of a mere observer and reporter
 of occurrences4    ,by taste1 nature1  
and training1 ,grotius was a jurist and 
not a  diplomatist1 and he soon realized
 that the two vocations1 if not         
diametrically opposed1 are at least     
separated from each other by a vast     
interval4 ,his diplomatic correspondence
 betrays the keen observer and  the     
conscientious moralist rather than the  
accomplished negotiator4  ,among the    
observations recorded in his dispatches1
 one may be quoted as  an example of his
 penetration and his humor4 ,speaking of
 the ,dauphin1  the future ,louis ,,xiv1
 he says3 ,his frightful and precocious 
avidity is  a bad omen for neighboring  
peoples2 for he is at present on his    
ninth  nurse1 whom he is rending and    
murdering as he has the others6    ,it  
is painful to behold the great father of
 international jurisprudence  descending
 in his dispatches to petty details of  
precedence and  alienating from himself 

the sympathies of his colleagues by     
ridiculous  ceremonial pretensions4 ,he 
would no longer visit ,mazarin1 because 
the ,cardinal insisted on calling him   
,,eminence instead of ,,excellence2     
,grotius considering this distinction of
 terms a slight upon his rank as        
ambassador4 ,so persistent was he in    
these follies and so rancorous were  the
 feuds that the apostle of peace        
elicited that1 in ,december1 #afcf1     
less than two years after his arrival at
 ,paris1 he advised ,sweden to  send to 
,france a simple ,charg d',affaires1    
instead of an ambassador1  in order to  
restore diplomatic relations4    ,his   
quarrels concerning precedence1 which   
rendered him an object  of ridicule at  
the ,french ,court1 were not the only   
griefs of the  ambassador of ,sweden4   
,inadequately recompensed1 he was       
obliged to wait  two years for his      
salary and finally1 being reduced to a  
condition  in which he could no longer  
maintain existence otherwise1 he was    

compelled to demand of the royal        
treasury of ,france a part of the       
subsidies promised to the army of his   
adopted country4 ,weary of his          
importunities1 the ,french government   
repeatedly requested his recall4        
,disgusted with his mission1 ,grotius at
 last abandoned the duties of his       
office to the intriguing adventurer1    
,cerisante1 who was sent to aid  him1   
and buried himself in his books until   
his return to ,sweden at his  own       
request in #afde4    ,queen ,christina  
of ,sweden1 a patroness of scholars1    
desirous of aiding  ,grotius and of     
retaining him in the service of her     
kingdom1 made many  offers and promises1
 but their execution being deferred1 he 
became  impatient of his lot1 refused a 
position as counselor of state1 and     
resolved to leave the country4 ,his plan
 to abandon ,stockholm secretly  was    
prevented by a messenger of the queen   
who followed him to the port  where he  
intended to embark and induced him to   

return for a farewell  audience4 ,with a
 handsome present of money and silver   
plate he took  passage on a vessel      
placed at his disposition to convey him 
to ,lbeck4  ,off the coast near ,dantzic
 a violent tempest arose4 ,on the #agth 
of  ,august1 #afde1 the vessel was      
driven ashore and ,grotius1 overcome by 
his  trying experiences1 was taken ill  
at ,rostock1 where a few days later he  
passed away4    ,the later years of his 
life had been chiefly devoted to plans  
for the  establishment of peace in the  
religious world1 whose dissensions gave 
him great distress of mind4    ,the     
country of his birth1 which had so long 
denied him citizenship1  received him at
 last to the silent hospitality of the  
tomb4 ,his body  was taken to ,delft1   
his native town1 where his name is now  
held in  grateful reverence4    ,at the 
time when ,grotius left ,stockholm1 the 
last of the  plenipotentiaries had      
arrived at ,mnster and ,osnabrck to     
attend the  great ,european congress    

convoked to terminate the hostilities of
 the  ,thirty ,years' ,war4 ,it is a    
tradition1 but incapable of satisfactory
  proof1 that it was with the purpose of
 being present at the councils  of this 
congress that the author of ,de ,jure   
,belli ac ,pacis left  ,sweden for      
,germany4 ,however this may be1 it is   
certain that the  mediation of the king 
of ,denmark at ,osnabrck and of the     
papal legate  at ,mnster1 though        
unsuccessful1 was in accordance with the
 idea of  ,grotius expressed in the     
words3 ,it would be useful1 and indeed  
it  is almost necessary1 that certain   
congresses of ,christian powers  should 
be held1 in which controversies that    
have arisen among some of  them may be  
decided by others who are not           
interested4 ,the immediate              
establishment of an international       
tribunal1 evidently contemplated in     
this suggestion1 was not in harmony with
 the temper of those times2  but it     
cannot be doubted that the ,peace of    

,westphalia1 whose treaties  were to    
form a code of public law for ,europe1  
was to a great degree an  embodiment of 
the principles which ,grotius was the   
first to enunciate4    ,his ,de ,jure   
,belli ac ,pacis had already become a   
classic even before  the author's death1
 and special professorships were soon   
founded in  the universities to expound 
its principles4 ,it would be tedious to 
name the numerous editions1             
translations1 and commentaries which    
have  given it an exceptional place in  
the literature of ,europe4 ,this task   
has been in part performed1 however1 by 
,dr4 ,rogge in his ,bibliotheca         
,grotiana1 published at ,the ,hague in  
#ahhc1 and intended to be a full        
bibliography of ,grotius's works4 ,the  
whole number of titles included  is     
#dfb1 but they do not comprise the      
writings of the generations of  jurists 
who have been inspired by the great     
master or of the critics  and           
biographers who have discussed his life 

and work4    ,tardily1 but with full    
contrition for the bitter wrong done to 
one of  her greatest and noblest sons1  
the memory of ,grotius has received from
  his native land abundant recognition  
and commemoration4 ,the appropriate     
tomb that marks his resting place in the
 ,nieuwe ,kerk at ,delft1  symbolical of
 his learning1 genius1 and renown1 was  
erected in #agha4  ,on the #agth of     
,september1 #ahhf1 a noble statue of the
 great jurist was  unveiled in the      
public square of his native town in     
front of the church  which contains his 
tomb4 ,thus1 more than a century after  
his death1  and again still another     
century later1 ,holland has paid her    
tribute of  respect to her illustrious  
citizen4    ,the later years have also  
brought new honors to ,grotius's feet4  
,at  the recent ,peace ,conference at   
,the ,hague was completed the great     
structure of international comity whose 
corner stone was laid by him  in #afbe4 
,it was most fitting that an            

international congress called in  the   
interest of peace should blend with the 
negotiation of conventions  for the     
pacific settlement of disputes between  
nations by a permanent  tribunal1 and   
for the amelioration of the laws of war1
 a celebration  of the distinguished    
writer whose great thought had at last  
borne  such precious fruits4 ,in        
pursuance of instructions received from 
the ,secretary of ,state1 the ,united   
,states ,commission invited their       
colleagues in the congress1 the heads of
 the ,dutch universities1 and  the high 
civic authorities to join with them in  
observing the #dth of  ,july by         
celebrating the memory of the great     
jurist4 ,with appropriate  exercises in 
the apse of the old church1 near the    
monument of ,grotius  and mausoleum of  
,william the ,silent1 the               
representatives of twenty-six  nations  
gathered to do him honor4 ,a beautiful  
commemorative wreath of  silver was laid
 upon ,grotius's tomb bearing the       

inscription3        ,,to      ,,the     
,,memory ,,of ,,hugo ,,grotius      ,,in
      ,,reverence ,,and ,,gratitude     
,,from ,,the ,,united ,,states ,,of     
,,america      ,,on ,,the               
,,occasion ,,of ,,the ,,international   
,,peace ,,conference      ,,at          
,,the ,,hague ,,july #d,,th1 #ahii4     
,an eloquent oration by the ,honorable  
,andrew ,d4 ,white1 ,ambassador of the  
,united ,states to ,germany1 and the    
head of the ,commission1 followed by    
other appropriate addresses1 recalled   
the debt of mankind to the author  of   
,de ,jure ,belli ac ,pacis2 and thus the
 plenipotentiaries of the  nineteenth   
century did homage to the exile of the  
sixteenth who had  taught the world that
 even in the shock and storm of battle  
humanity  cannot escape the dominion of 
its own essential laws1 and that even   
independent states are answerable before
 the bar of human nature for  obedience 
to principles imposed by a ,power higher
 than the prerogatives  of princes or   

the will of nations4            ,david  
,j4 ,hill          ,,the ,,rights ,,of  
,,war ,,and ,,peace1 ,,including ,,the  
,,law ,,of ,,nature ,,and ,,of          
,,nations4          ,,book ,i4          
,,chapter ,i4      ,of ,war--,definition
 of ,war--,right1 of ,governors and of  
the governed1      and of equals--,right
 as a ,quality divided into ,faculty and
      ,fitness--,faculty denoting       
,power1 ,property1 and ,credit--,divided
 into      ,private and                 
,superior--,right as a ,rule1 natural   
and voluntary--,law      of ,nature     
divided--,proofs of the ,law of         
,nature--,division of ,rights      into 
human and divine--,human                
explained--,divine stated--,mosaic ,law 
not binding upon ,christians4      ,i4  
,the disputes arising among those who   
are held together by no  common bond of 
civil laws to decide their dissensions1 
like the  ancient ,patriarchs1 who      
formed no national community1 or the    
numerous1  unconnected communities1     

whether under the direction of          
individuals1 or  kings1 or persons      
invested with ,sovereign power1 as the  
leading men in  an aristocracy1 and the 
body of the people in a republican      
government2  the disputes1 arising among
 any of these1 all bear a relation to   
the  circumstances of war or peace4 ,but
 because war is undertaken for the  sake
 of peace1 and there is no dispute1     
which may not give rise to  war1 it will
 be proper to treat all such quarrels1  
as commonly happen1  between nations1 as
 an article in the rights of war3 and   
then war  itself will lead us to peace1 
as to its proper end4    ,,ii4 ,in      
treating of the rights of war1 the first
 point1 that we have  to consider1 is1  
what is war1 which is the subject of our
 inquiry1  and what is the right1 which 
we seek to establish4 ,cicero styled war
 a  contention by force4 ,but the       
practice has prevailed to indicate by   
that  name1 not an immediate action1 but
 a state of affairs2 so that war is  the

 state of contending parties1 considered
 as such4 ,this definition1  by its     
general extent1 comprises those wars of 
every description1  that will form the  
subject of the present treatise4 ,nor   
are single  combats excluded from this  
definition4 ,for1 as they are in reality
 more  ancient than public wars1 and    
undoubtedly1 of the same nature1 they   
may  therefore properly be comprehended 
under one and the same name4 ,this      
agrees very well with the true          
derivation of the word4 ,for the ,latin 
word1 ,bellum1 ,,war1 comes from the old
 word1 ,duellum1 a ,,duel1 as  ,bonus   
from ,duonus1 and ,bis from ,duis4 ,now 
,duellum was derived  from ,duo2 and    
thereby implied a difference between two
 persons1 in  the same sense as we term 
peace1 ,,unity1 from ,unitas1 for a     
contrary  reason4 ,so the ,greek word1  
polemos commonly used to signify  war1  
expresses in its original1 an idea of   
multitude4 ,the ancient  ,greeks        
likewise called it  ly1 which imports a 

,,disunion of  minds2 just as by the    
term  dy1 they meant the ,,dissolution  
of the  parts of the body4 ,nor does the
 use of the word1 ,,war1 contradict this
  larger acceptation of it4 ,for though 
some times it is only applied to  the   
quarrels of states1 yet that is no      
objection1 as it is evident that  a     
general name is often applied to some   
particular object1 entitled to  peculiar
 distinction4 ,justice is not included  
in the definition of war1  because the  
very point to be decided is1 whether any
 war is just1 and  what war may be so   
called4 ,therefore we must make a       
distinction between  war itself1 and the
 justice of it4    ,,iii4 ,as the       
,rights of ,war is the title1 by which  
this treatise is  distinguished1 the    
first inquiry1 as it has been already   
observed1 is  whether any war be just1  
and1 in the next place1 what constitutes
 the  justice of that war4 ,for1 in this
 place1 right signifies nothing more    
than what is just1 and that1 more in a  

negative than a positive sense2  so that
 ,,right is that1 which is not unjust4  
,now any thing is unjust1  which is     
repugnant to the nature of society1     
established among rational  creatures4  
,thus for instance1 to deprive another  
of what belongs to  him1 merely for     
one's own advantage1 is repugnant to the
 law of nature1  as ,cicero observes in 
the fifth ,chapter of his third book of 
offices2  and1 by way of proof1 he says 
that1 if the practice were general1 all 
society and intercourse among men must  
be overturned4 ,florentinus1 the        
,lawyer1 maintains that is impious for  
one man to form designs against         
another1 as nature has established a    
degree of kindred amongst us4 ,on  this 
subject1 ,seneca remarks that1 as all   
the members of the human body  agree    
among themselves1 because the           
preservation of each conduces to  the   
welfare of the whole1 so men should     
forbear from mutual injuries1  as they  
were born for society1 which cannot     

subsist unless all the  parts of it are 
defended by mutual forbearance and good 
will4 ,but as  there is one kind of     
social tie founded upon an equality1 for
 instance1  among brothers1 citizens1   
friends1 allies1 and another on         
pre-eminence  as ,aristotle styles it1  
subsisting between parents and children1
  masters and servants1 sovereigns and  
subjects1 ,god and men4 ,so justice     
takes place either amongst equals1 or   
between the governing and the  governed 
parties1 notwithstanding their          
difference of rank4 ,the former  of     
these1 if ,i am not mistaken1 may be    
called the right of equality1  and the  
latter the right of superiority4        
,,iv4 ,there is another signification of
 the word ,,right1 different from  this1
 but yet arising from it1 which relates 
directly to the person4  ,in which      
sense1 ,,right is a moral quality       
annexed to the person1 justly  entitling
 him to possess some particular         
privilege1 or to perform  some          

particular act4 ,this right is annexed  
to the person1 although  it sometimes   
follows the things1 as the services of  
lands1 which are  called ,,real         
,,rights1 in opposition to those merely 
,,personal4 ,not because  these rights  
are not annexed to persons1 but the     
distinction is made1  because they      
belong to the persons only who possess  
some particular  things4 ,this moral    
quality1 when perfect is called a       
,,faculty2 when  imperfect1 an          
,,aptitude4 ,the former answers to the  
,,act1 and the latter  to the ,,power1  
when we speak of natural things4    ,v4 
,civilians call a faculty that ,right1  
which every man has to his  own2 but we 
shall hereafter1 taking it in its strict
 and proper sense1  call it a right4    
,this right comprehends the power1 that 
we have over  ourselves1 which is called
 liberty1 and the power1 that we have   
over  others1 as that of a father over  
his children1 and of a master over  his 
slaves4 ,it likewise comprehends        

property1 which is either complete  or  
imperfect2 of the latter kind is the use
 or possession of any thing  without the
 property1 or power of alienating it1 or
 pledges detained  by the creditors till
 payment be made4 ,there is a third     
signification1  which implies the power 
of demanding what is due1 to which the  
obligation upon the party indebted1 to  
discharge what is owing1  corresponds4  
,,vi4 ,right1 strictly taken1 is again  
twofold1 the one1 ,,private1            
established for the advantage of each   
individual1 the other1 ,,superior1  as  
involving the claims1 which the state   
has upon individuals1 and  their        
property1 for the public good4 ,thus the
 ,regal authority is above  that of a   
father and a master1 and the ,sovereign 
has a greater right  over the property  
of his subjects1 where the public good  
is concerned1  than the owners          
themselves have4 ,and when the          
exigencies of the state  require a      
supply1 every man is more obliged to    

contribute towards it1  than to satisfy 
his creditors4    ,,vii4 ,aristotle     
distinguishes aptitude or capacity1 by  
the name of worth  or merit1 and        
,michael of ,ephesus1 gives the epithet 
of ,,suitable or  ,,becoming to the     
equality established by this rule of    
merit4    ,,ix4#a ,there is also a third
 signification of the word ,right1 which
  has the same meaning as ,law taken in 
its most extensive sense1 to  denote a  
rule of moral action1 obliging us to do 
what is proper4 ,we  say ,,obliging us4 
,for the best counsels or precepts1 if  
they lay us  under no obligation to obey
 them1 cannot come under the            
denomination  of law or right4 ,now as  
to permission1#b it is no act of the    
law1  but only the silence of the law1  
it however prohibits any one from       
impeding another in doing what the law  
permits4 ,but we have said1 the  law    
obliges us to do what is proper1 not    
simply what is just2 because1  under    
this notion1 right belongs to the       

substance not only of justice1  as we   
have explained it1 but of all other     
virtues4 ,yet from giving the  name of a
 ,,right to that1 which is ,,proper1 a  
more general acceptation  of the word   
justice has been derived4 ,the best     
division of right1 in  this general     
meaning1 is to be found in ,aristotle1  
who1 defining one  kind to be natural1  
and the other voluntary1 calls it a     
,,lawful ,,right  in the strictest sense
 of the word law2 and some times an     
instituted  right4 ,the same difference 
is found among the ,hebrews1 who1 by way
 of  distinction1 in speaking1 call that
 natural right1 ,,precepts1 and the     
voluntary right1 ,,statutes3 the former 
of which the ,septuagint call           
dikaimata1 and the latter  entolas4     
,x4 ,natural right is the dictate of    
right reason1 shewing the moral         
turpitude1 or moral necessity1#c of any 
act from its agreement or  disagreement 
with a rational nature1 and consequently
 that such an  act is either forbidden  

or commanded by ,god1 the author of     
nature4  ,the actions1 upon which such a
 dictate is given1 are either binding   
or unlawful in themselves1 and therefore
 necessarily understood to be  commanded
 or forbidden by ,god4 ,this mark       
distinguishes natural right1  not only  
from human law1 but from the law1 which 
,god himself has been  pleased to       
reveal1 called1 by some1 the voluntary  
divine right1 which  does not command or
 forbid things in themselves either     
binding or  unlawful1 but makes them    
unlawful by its prohibition1 and binding
 by  its command4 ,but1 to understand   
natural right1 we must observe that     
some things are said to belong to that  
right1 not properly1 but1 as  the       
schoolmen say1 by way of accommodation4 
,these are not repugnant to  natural    
right1 as we have already observed that 
those things are called  ,,just1 in     
which there is no injustice4 ,some times
 also1 by a wrong use  of the word1     
those things which reason shews to be   

proper1 or better  than things of an    
opposite kind1 although not binding1 are
 said to  belong to natural right4      
,we must farther remark1 that natural   
right relates not only to those  things 
that exist independent of the human     
will1 but to many things  which         
necessarily follow the exercise of that 
will4 ,thus property1  as now in use1   
was at first a creature of the human    
will4 ,but1 after  it was established1  
one man was prohibited by the law of    
nature from  seizing the property of    
another against his will4 ,wherefore1   
,paulus the  ,lawyer said1 that theft is
 expressly forbidden by the law of      
nature4  ,ulpian condemns it as infamous
 in its own nature2 to whose authority  
that of ,euripides may be added1 as may 
be seen in the verses of ,helena3       
,for ,god himself hates violence1 and   
will not have us to grow rich by        
rapine1 but by lawful gains4 ,that      
abundance1 which is the fruit of        
unrighteousness1 is an abomination4 ,the

 air is common to men1 the earth  also1 
where every man1 in the ample enjoyment 
of his possession1 must  refrain from   
doing violence or injury to that of     
another4    ,now the ,law of ,nature is 
so unalterable1 that it cannot be       
changed even  by ,god himself4 ,for     
although the power of ,god is infinite1 
yet there  are some things1 to which it 
does not extend4 ,because the things so 
expressed would have no true meaning1   
but imply a contradiction4 ,thus  two   
and two must make four1 nor is it       
possible to be otherwise2 nor1  again1  
can what is really evil not be evil4    
,and this is ,aristotle's  meaning1 when
 he says1 that some things are no sooner
 named1 than we  discover their evil    
nature4 ,for as the substance of things 
in their  nature and existence depends  
upon nothing but themselves2 so there   
are qualities inseparably connected with
 their being and essence4 ,of  this kind
 is the evil of certain actions1        
compared with the nature of  a          

reasonable being4 ,therefore ,god       
himself suffers his actions to be       
judged by this rule1 as may be seen in  
the xviiith chap4 of ,gen4 #be4  ,isa4  
v4 #c4 ,ezek4 xviii4 #be4 ,jer4 ii4 #i4 
,mich4 vi4 #b4 ,rom4 ii4 #f41 iii4  #f4 
,yet it sometimes happens that1 in those
 cases1 which are decided by  the law of
 nature1 the undiscerning are imposed   
upon by an appearance  of change4       
,whereas in reality there is no change  
in the unalterable  law of nature1 but  
only in the things appointed by it1 and 
which are  liable to variation4 ,for    
example1 if a creditor forgive me the   
debt1  which ,i owe him1 ,i am no longer
 bound to pay it1 not because the law of
  nature has ceased to command the      
payment of a just debt1 but because my  
debt1 by a release1 has ceased to be a  
debt4 ,on this topic1 ,arrian in        
,epictetus argues rightly1 that the     
borrowing of money is not the only      
requisite to make a debt1 but there must
 be the additional circumstance  of the 

loan remaining undischarged4 ,thus if   
,god should command the  life1 or       
property of any one to be taken away1   
the act would not  authorise murder or  
robbery1 words which always include a   
crime4 ,but  that cannot be murder or   
robbery1 which is done by the express   
command  of ,him1 who is the sovereign  
,lord of our lives and of all things4   
,there  are also some things allowed by 
the law of nature1 not absolutely1 but  
according to a certain state of affairs4
 ,thus1 by the law of nature1  before   
property was introduced1 every one had a
 right to the use of  whatever he found 
unoccupied2 and1 before laws were       
enacted1 to avenge  his personal        
injuries by force4    ,,xi4 ,the        
distinction found in the books of the   
,roman ,law1 assigning  one unchangeable
 right to brutes in common with man1    
which in a more  limited sense they call
 the law of nature1 and appropriating   
another to  men1 which they frequently  
call the ,law of ,nations1 is scarcely  

of any  real use4 ,for no beings1 except
 those that can form general maxims1 are
  capable of possessing a right1 which  
,hesiod has placed in a clear point  of 
view1 observing that the supreme ,being 
has appointed laws for men2  but        
permitted wild beasts1 fishes1 and birds
 to devour each other for  food4 ,for   
they have nothing like justice1 the best
 gift1 bestowed upon  men4    ,cicero1  
in his first book of offices1 says we do
 not talk of the  justice of horses or  
lions4 ,in conformity to which1         
,plutarch1 in the  life of ,cato the    
elder1 observes1 that we are formed by  
nature to use  law and justice towards  
men only4 ,in addition to the above1    
,lactantius  may be cited1 who1 in his  
fifth book1 says that in all animals    
devoid  of reason we see a natural bias 
of self-love4 ,for they hurt others  to 
benefit themselves2 because they do not 
know the evil of doing  wilful hurt4    
,but it is not so with man1 who1        
possessing the knowledge  of good and   

evil1 refrains1 even with inconvenience 
to himself1  from doing hurt4 ,polybius1
 relating the manner in which men first 
entered into society1 concludes1 that   
the injuries done to parents or         
benefactors inevitably provoke the      
indignation of mankind1 giving an       
additional reason1 that as understanding
 and reflection form the great          
difference between men and other        
animals1 it is evident they cannot      
transgress the bounds of that difference
 like other animals1 without  exciting  
universal abhorrence of their conduct4  
,but if ever justice is  attributed to  
brutes1 it is done improperly1 from some
 shadow and trace  of reason they may   
possess4 ,but it is not material to the 
nature of  right1 whether the actions   
appointed by the law of nature1 such as 
the  care of our offspring1 are common  
to us with other animals or not1 or1    
like the worship of ,god1 are peculiar  
to man4    ,,xii4 ,the existence of the 
,law of ,nature is proved by two kinds  

of  argument1 a priori1 and a           
posteriori1 the former a more abstruse1 
and the latter a more popular method of 
proof4 ,we are said to reason a  priori1
 when we show the agreement or          
disagreement of any thing with a        
reasonable and social nature2 but a     
posteriori1 when without absolute       
proof1 but only upon probability1 any   
thing is inferred to accord with  the   
law of nature1 because it is received as
 such among all1 or at  least the more  
civilized nations4 ,for a general effect
 can only arise  from a general cause4  
,now scarce any other cause can be      
assigned for so  general an opinion1 but
 the common sense1 as it is called1 of  
mankind4  ,there is a sentence of       
,hesiod that has been much praised1 that
 opinions  which have prevailed amongst 
many nations1 must have some foundation4
  ,heraclitus1 establishing common      
reason as the best criterion of truth1  
says1 those things are certain which    
generally appear so4 ,among other       

authorities1 we may quote ,aristotle1   
who says it is a strong proof  in our   
favour1 when all appear to agree with   
what we say1 and ,cicero  maintains that
 the consent of all nations in any case 
is to be admitted  for the law of       
nature4 ,seneca is of the same opinion1 
any thing1 says  he1 appearing the same 
to all men is a proof of its truth4     
,quintilian  says1 we hold those things 
to be true1 in which all men agree4 ,we 
have  called them the more civilized    
nations1 and not without reason4 ,for1  
as ,porphyry well observes1 some nations
 are so strange that no fair  judgment  
of human nature can be formed from them1
 for it would be  erroneous4            
,andronicus1 the ,rhodian says1 that    
with men of a right and  sound          
understanding1 natural justice is       
unchangeable4 ,nor does it alter  the   
case1 though men of disordered and      
perverted minds think otherwise4  ,for  
he who should deny that honey is sweet1 
because it appears not so  to men of a  

distempered taste1 would be wrong4      
,plutarch too agrees  entirely with what
 has been said1 as appears from a       
passage in his life  of ,pompey1        
affirming that man neither was1 nor is1 
by nature1 a wild  unsociable creature4 
,but it is the corruption of his nature 
which makes  him so3 yet by acquiring   
new habits1 by changing his place1 and  
way  of living1 he may be reclaimed to  
his original gentleness4 ,aristotle1    
taking a description of man from his    
peculiar qualities1 makes him  an animal
 of a gentle nature1 and in another part
 of his works1 he  observes1 that in    
considering the nature of man1 we are to
 take our  likeness from nature in its  
pure1 and not in its corrupt state4     
,,xiii4 ,it has been already remarked1  
that there is another kind of  right1   
which is the voluntary right1 deriving  
its origin from the will1  and is either
 human or divine4    ,,xiv4 ,we will    
begin with the human as more generally  
known4 ,now this  is either a civil     

right1 or a right more or less extensive
 than the  civil right4 ,the civil right
 is that which is derived from the civil
  power4 ,the civil power is the        
sovereign power of the state4 ,a state  
is  a perfect body of free men1 united  
together in order to enjoy common       
rights and advantages4 ,the less        
extensive right1 and not derived  from  
the civil power itself1 although subject
 to it1 is various1  comprehending the  
authority of parents over children1     
masters over  servants1 and the like4   
,but the law of nations is a more       
extensive  right1 deriving its authority
 from the consent of all1 or at least of
  many nations4    ,it was proper to add
 ,,many1 because scarce any right can be
 found common  to all nations1 except   
the law of nature1 which itself too is  
generally  called the law of nations4   
,nay1 frequently in one part of the     
world1  that is held for the law of     
nations1 which is not so in another4    
,now  this law of nations is proved in  

the same manner as the unwritten civil  
law1 and that is by the continual       
experience and testimony of the ,sages  
of the ,law4 ,for this law1 as ,dio     
,chrysostom well observes1 is the       
discoveries made by experience and time4
 ,and in this we derive great  advantage
 from the writings of eminent           
historians4    ,,xv4 ,the very meaning  
of the words divine voluntary right1    
shows that it  springs from the divine  
will1 by which it is distinguished from 
natural  law1 which1 it has already been
 observed1 is called divine also4 ,this 
law admits of what ,anaxarchus said1 as 
,plutarch relates in the life of        
,alexander1 though without sufficient   
accuracy1 that ,god does not will  a    
thing1 because it is just1 but that it  
is just1 or binding1 because  ,god wills
 it4 ,now this law was given either to  
mankind in general1 or  to one          
particular people4 ,we find three       
periods1 at which it was given  by ,god 
to the human race1 the first of which   

was immediately after the  creation of  
man1 the second upon the restoration of 
mankind after the  flood1 and the third 
upon that more glorious restoration     
through ,jesus  ,christ4 ,these three   
laws undoubtedly bind all men1 as soon  
as they come  to a sufficient knowledge 
of them4    ,,xvi4 ,of all nations there
 is but one1 to which ,god particularly 
vouchsafed to give laws2 and that was   
the people of ,israel1 whom ,moses  thus
 addresses in the fourth ,chap4 of      
,deuteronomy1 ver4 #g4 ,what  nation is 
there so great who hath ,god so nigh    
unto them1 as the ,lord  our ,god is in 
all things that we call upon him for8   
,and what nation  is there so great1 who
 have statutes and judgments so         
righteous1 as  all this law1 which ,i   
set before you this day6 ,and the       
,psalmist in  the cxlvii4 ,psalm1 ,god  
shewed his word unto ,jacob1 his        
statutes and  ordinances unto ,israel4  
,he hath not dealt so with any nation1  
and as  for his judgments they have not 

known them4 ,nor can we doubt but that  
those ,jews1 with whom we may class     
,tryphon in his dispute with ,justin1   
are mistaken1 who suppose that even     
strangers1 if they wish to be  saved1   
must submit to the yoke of the ,mosaic  
,law4 ,for a law does not  bind those1  
to whom it has not been given4 ,but it  
speaks personally  to those1 who are    
immediately under it4 ,hear ,o ,israel1 
and we read  everywhere of the covenant 
made with them1 by which they became the
  peculiar people of ,god4 ,maimonides  
acknowledges and proves the truth of    
this from the xxxiii4 ,chapter and      
fourth verse of ,deuteronomy4    ,but   
among the ,hebrews themselves there were
 always living some  strangers1 persons 
devout and fearing ,god1 such was the   
,syrophoenician  woman1 mentioned in the
 ,gospel of ,st4 ,matthew1 xv4 #bb4     
,cornelius the  ,centurion4 ,acts4 x4   
the devout ,greeks1 ,acts xviii4 #f4    
,sojourners1 or  strangers1 also are    
mentioned4 ,levit4 xxv4 #dg4 ,these1 as 

the ,hebrew  ,rabbis themselves inform  
us1 were obliged to observe the laws    
given  to ,adam and ,noah1 to abstain   
from idols and blood1 and other things1 
that were prohibited2 but not in the    
same manner to observe the laws         
peculiar to the people of ,israel4      
,therefore though the ,israelites  were 
not allowed to eat the flesh of a beast1
 that had died a natural  death2 yet the
 strangers living among them were       
permitted4 ,deut4 xiv4  #ba4 ,except in 
some particular laws1 where it was      
expressly said1  that strangers no less 
than the native inhabitants were obliged
 to  observe them4 ,strangers also1 who 
came from other countries1 and were  not
 subject to the ,jewish laws1 might     
worship ,god in the temple of           
,jerusalem1 but standing in a place     
separate and distinct from the          
,israelites4 ,i4 ,kings viii4 #da4 #b   
,mac4 iii4 #ce4 ,john xii4 #bj4 ,acts   
viii4  #bg4 ,nor did ,elisha ever       
signify to ,naaman the ,syrian1 nor     

,jonas to the  ,ninevites1 nor ,daniel  
to ,nebuchadnezzar1 nor the other       
,prophets to the  ,tyrians1 the         
,moabites1 the ,egyptians1 to whom they 
wrote1 that it was  necessary for them  
to adopt the ,mosaic ,law4    ,what has 
been said of the whole law of ,moses    
applies to circumcision1  which was a   
kind of introduction to the law4 ,yet   
with this difference  that the          
,israelites alone were bound by the     
,mosaic ,law1 but the  whole posterity  
of ,abraham by the law of circumcision4 
,from hence  we are informed by ,jewish 
and ,greek ,historians1 that the        
,idumaeans1  or ,edomites were compelled
 by the ,jews to be circumcised4        
,wherefore  there is reason to believe  
that the numerous nations1 who1 besides 
the  ,israelites1 practised             
circumcision1 and who are mentioned by  
,herodotus1  ,strabo1 ,philo1 ,justin1  
,origen1 ,clemens1 ,alexandrinus1       
,epiphanius1  and ,jerom1 were descended
 from ,ishmael1 ,esau1 or the posterity 

of  ,keturah4 ,but what ,st4 ,paul says1
 ,rom4 ii4 #ad4 holds good of all other 
nations2 that the ,gentiles1 not having 
the law1 yet doing by nature  the things
 contained in the law1 become a law to  
themselves4 ,here the  word nature may  
be taken for the primitive source of    
moral obligation2  or1 referring it to  
the preceding parts of the ,epistle1 it 
may signify  the knowledge1 which the   
,gentiles acquired of themselves without
  instruction1 in opposition to the     
knowledge derived to the ,jews from  the
 law1 which was instilled into them from
 their cradle1 and almost  from their   
birth4 ,so the ,gentiles show the work1 
or the moral precepts  of the law1      
written in their hearts1 their          
consciences also bearing  witness1 and  
their thoughts the mean while accusing  
or else excusing  one another4 ,and     
again in the #bfth ver42 ,if the        
uncircumcision  keep the righteousness  
of the law1 shall not his uncircumcision
 be  counted for circumcision8          

,therefore ,ananias1 the ,jew1 as we    
find in  the history of ,josephus1 very 
properly taught ,tzates1 or as ,tacitus 
calls him1 ,ezates1 the ,adiabenian1    
that even without circumcision1  ,god   
might be rightly worshipped and rendered
 propitious4 ,for though  many strangers
 were circumcised1 among the ,jews1 and 
by circumcision  bound themselves to    
observe the law1 as ,st4 ,paul explains 
it in ,gal4  v4 #c42 they did it partly 
to obtain the freedom of the country2   
for  proselytes called by the ,hebrews1 
proselytes of righteousness1 enjoyed    
equal privileges with the ,israelites4  
,num4 xv43 and partly to obtain a  share
 in those promises1 which were not      
common to mankind1 but peculiar  to the 
,jewish people1 although it cannot be   
denied1 that in later  ages an erroneous
 opinion prevailed1 that there was no   
salvation out  of the ,jewish pale4     
,hence we may infer1 that we are bound  
by no part  of the ,levitical law1      
strictly and properly so called2 because

 any  obligation1 beyond that arising   
from the law of nature1 must proceed    
from the express will of the law-giver4 
,now it cannot be discovered  by any    
proof1 that ,god intended any other     
people1 but the ,israelites  to be bound
 by that law4 ,therefore with respect to
 ourselves1 we have  no occasion to     
prove an abrogation of that law2 for it 
could never  be abrogated with respect  
to those1 whom it never bound4 ,but the 
,israelites were released from the      
ceremonial part1 as soon as the law  of 
the ,gospel was proclaimed2 a clear     
revelation of which was made to  one of 
the ,apostles1 ,acts x4 #ae4 ,and the   
other parts of the ,mosaic law  lost    
their peculiar distinction1 when the    
,jews ceased to be a people  by the     
desolation and destruction of their city
 without any hopes of  restoration4     
,indeed it was not a release from the   
law of ,moses that  we1 who were        
strangers to the ,commonwealth of       
,israel1 obtained by the  coming of     

,christ4 ,but as before that time1 our  
hopes in the goodness of  ,god were     
obscure and uncertain1 we gained the    
assurance of an express  covenant1 that 
we should be united in one ,church with 
the seed of  ,israel1 the children of   
the patriarchs1 their law1 that was the 
wall of  separation between us1 being   
broken down4 ,eph4 ii4 #ad4    ,,xvii4  
,since then the law given by ,moses     
imposes no direct obligation  upon us1  
as it has been already shown1 let us    
consider whether it  has any other use  
both in this inquiry into the rights of 
war1 and  in other questions of the same
 kind4 ,in the first place1 the ,mosaic 
law shows that what it enjoins is not   
contrary to the law of nature4  ,for    
since the law of nature is perpetual and
 unchangeable1 nothing  contradictory to
 it could be commanded by ,god1 who is  
never unjust4  ,besides the law of      
,moses is called in the xix4 ,psalm an  
undefiled  and right law1 and ,st4      
,paul1 ,rom4 vii4 #ab1 describes it to  

be holy1  just1 and good4 ,its precepts 
are here spoken of1 for its permissions 
require a more distinct discussion4 ,for
 the bare permission1 signifying  the   
removal of an impediment1 or            
prohibition1 has no relation to the     
present subject4 ,a positive1 legal     
permission is either full1 granting  us 
power to do some particular act without 
the least restriction1  or less full1   
only allowing men impunity for certain  
actions1 and a  right to do them without
 molestation from others4 ,from the     
permission  of the former kind no less  
than from a positive precept1 it follows
  that what the law allows1 is not      
contrary to the law of nature4#d  ,but  
with regard to the latter kind of       
permission1 allowing impunity  for      
certain acts1 but not expressly         
authorizing them1 we cannot so  readily 
conclude those acts to be conformable to
 the law of nature4#e  ,because where   
the words of permission are ambiguous in
 their meaning1  it is better for us to 

interpret according to the established  
law of  nature1 what kind of permission 
it is1 than from our conception of its  
expediency to conclude it conformable to
 the laws of nature4 ,connected  with   
this first observation there is another1
 expressive of the power  that obtains  
among ,christian ,princes to enact laws 
of the same import  with those given by 
,moses1 except such as related entirely 
to the time  of the expected ,messiah1  
and the ,gospel then unrevealed1 or     
where  ,christ himself has in a general 
or particular manner established any    
thing to the contrary4 ,for except in   
these three cases1 no reason can  be    
devised1 why any thing established by   
the law of ,moses should be  now        
unlawful4 ,in the third place it may be 
observed1 that whatever  the law of     
,moses enjoined relating to those       
virtues1 which ,christ  required of his 
disciples1 should be fulfilled by       
,christians now1 in  a greater degree1  
from their superior knowledge1 and      

higher motives4  ,thus the virtues of   
humility1 patience1 and charity are     
required of  ,christians in a more      
perfect manner than of the ,jews under  
the ,mosaic  dispensation1 because the  
promises of heaven are more clearly laid
  before us in the ,gospel4 ,hence the  
old law1 when compared with the         
,gospel1 is said to have been neither   
perfect nor faultless1 and ,christ  is  
said to be the end of the law1 and the  
law our schoolmaster to bring  us to    
,christ4 ,thus the old law respecting   
the ,sabbath1 and the law  respecting   
tithes1 show that ,christians are bound 
to devote not less  than a seventh      
portion of their time to divine worship1
 nor less than  a tenth of their fruits 
to maintain those who are employed in   
holy  things1 or to other pious uses4   
,,chapter ,,ii4    ,,inquiry ,,into     
,,the ,,lawfulness ,,of ,,war4          
,reasons proving the lawfulness of      
,war--,proofs from ,history--,proofs    
from general consent--,the ,law of      

,nature proved not repugnant to         
,war--,war not condemned by the         
voluntary ,divine ,law preceding the    
,gospel--,objections answered--,review  
of the question whether ,war be         
contrary to the ,law of the             
,gospel--,arguments from ,scripture for 
the      negative ,opinions--,answer to 
the ,arguments taken from ,scripture for
      the affirmative--,the opinions of 
the primitive ,christians on the        
subject examined4      ,i4 ,after       
examining the sources of right1 the     
first and most general  question that   
occurs1 is whether any war is just1 or  
if it is ever  lawful to make war4 ,but 
this question like many others that     
follow1  must in the first place be     
compared with the rights of nature4     
,cicero  in the third book of his       
,bounds of ,good and ,evil1 and in other
 parts of  his works1 proves with great 
erudition from the writings of the      
,stoics1  that there are certain first  
principles of nature1 called by the     

,greeks  the first natural impressions1 
which are succeeded by other principles 
of obligation superior even to the first
 impressions themselves4 ,he  calls the 
care1 which every animal1 from the      
moment of its birth1 feels  for itself  
and the preservation of its condition1  
its abhorrence of  destruction1 and of  
every thing that threatens death1 a     
principle of  nature4 ,hence1 he says1  
it happens1 that if left to his own     
choice1  every man would prefer a sound 
and perfect to a mutilated and deformed 
body4 ,so that preserving ourselves in a
 natural state1 and holding to  every   
thing conformable1 and averting every   
thing repugnant to nature  is the first 
duty4    ,but from the knowledge of     
these principles1 a notion arises of    
their  being agreeable to reason1 that  
part of a man1 which is superior  to the
 body4 ,now that agreement with reason1 
which is the basis of  propriety1 should
 have more weight than the impulse of   
appetite2  because the principles of    

nature recommend right reason as a rule 
that  ought to be of higher value than  
bare instinct4 ,as the truth of this  is
 easily assented to by all men of sound 
judgment without any other              
demonstration1 it follows that in       
inquiring into the laws of nature  the  
first object of consideration is1 what  
is agreeable to those  principles of    
nature1 and then we come to the rules1  
which1 though  arising only out of the  
former1 are of higher dignity1 and not  
only to  be embraced1 when offered1 but 
pursued by all the means in our power4  
,this last principle1 which is called   
propriety1 from its fitness1  according 
to the various things on which it turns1
 sometimes is limited  to a very narrow 
point1 the least departure from which is
 a deviation  into vice2 sometimes it   
allows a wider scope1 so that some      
actions1  even laudable in themselves1  
may be omitted or varied without crime4 
,in this case there is not an immediate 
distinction between right and  wrong2   

the shades are gradual1 and their       
termination unperceived2 not  like a    
direct contrast1 where the opposition is
 immediately seen1 and  the first step  
is a transgression of the fixed bounds4 
,the general object of divine and human 
laws is to give the authority  of       
obligation to what was only laudable in 
itself4 ,it has been said  above that an
 investigation of the laws of nature    
implies an inquiry1  whether any        
particular action may be done without   
injustice3 now by  an act of injustice  
is understood that1 which necessarily   
has in it  any thing repugnant to the   
nature of a reasonable and social being4
 ,so  far from any thing in the         
principles of nature being repugnant to 
war1  every part of them indeed rather  
favours it4 ,for the preservation of    
our lives and persons1 which is the end 
of war1 and the possession or           
acquirement of things necessary and     
useful to life is most suitable to      
those principles of nature1 and to use  

force1 if necessary1 for those          
occasions1 is no way dissonant to the   
principles of nature1 since all  animals
 are endowed with natural strength1     
sufficient to assist and  defend        
themselves4    ,xenophon says1 that     
every animal knows a certain method of  
fighting  without any other instructor  
than nature4 ,in a fragment of ,ovid's1 
called the ,art of ,fishery1 it is      
remarked1 that all animals know their   
enemy and his means of defence1 and the 
strength and measure of their  own      
weapons4 ,horace has said1 the wolf     
attacks with its teeth1 the  bull with  
its horns1 and whence is this knowledge 
derived but from  instinct8 ,on this    
subject ,lucretius enlarges1 observing  
that every  creature knows its own      
powers4 ,the calf butts with its        
forehead1  before its horns appear1 and 
strikes with all imaginable fury4 ,on   
which ,galen expresses himself in the   
following manner1 every animal  appears 
to defend itself with that part of its  

body1 in which it excels  others4 ,the  
calf butts with its head before its     
horns have grown1 and  the colt strikes 
with its heel before its hoofs are hard1
 as the young  dog attempts to bite     
before his teeth are strong4 ,the same  
writer in  describing the use of        
different parts of the body1 says1 that 
man is  a creature formed for peace and 
war4 ,his armour forms not an immediate 
part of his body2 but he has hands fit  
for preparing and handling arms1  and we
 see infants using them spontaneously1  
without being taught to  do so4         
,aristotle in the #dth book1 and tenth  
chapter of the history of  animals1     
says1 that the hand serves man for a    
spear1 a sword1 or any  arms whatever1  
because it can hold and wield them4 ,now
 right reason  and the nature of society
 which claims the second1 and indeed    
more  important place in this inquiry1  
prohibit not all force1 but only that   
which is repugnant to society1 by       
depriving another of his right4 ,for    

the end of society is to form a common  
and united aid to preserve to  every one
 his own4 ,which may easily be          
understood to have obtained1  before    
what is now called property was         
introduced4 ,for the free use of  life  
and limbs was so much the right of every
 one1 that it could not  be infringed or
 attacked without injustice4 ,so the use
 of the common  productions of nature   
was the right of the first occupier1 and
 for any  one to rob him of that was    
manifest injustice4 ,this may be more   
easily  understood1 since law and custom
 have established property under its    
present form4 ,tully has expressed this 
in the third book of his ,offices  in   
the following words1 if every member    
could have separate feeling1  and       
imagine it could derive vigour from     
engrossing the strength of  a           
neighboring part of the body1 the whole 
frame would languish and  perish4 ,in   
the same manner if every one of us1 for 
his own advantage1  might rob another of

 what he pleased1 there would be a total
 overthrow  of human society and        
intercourse4 ,for though it is allowed  
by nature  for every one to give the    
preference to himself before another in 
the enjoyment of life and necessaries1  
yet she does not permit us to  increase 
our means and riches by the spoils of   
others4 ,it is not  therefore contrary  
to the nature of society to provide and 
consult for  ourselves1 if another's    
right is not injured2 the force         
therefore1  which inviolably abstains   
from touching the rights of others1 is  
not  unjust4 ,for as the same ,cicero   
observes some where in his ,epistles1   
that as there are two modes of          
contending1 the one by argument1 and the
  other by force1 and as the former is  
peculiar to man1 and the latter  common 
to him with the brute creation1 we must 
have recourse to the  latter1 when it is
 impossible to use the former4 ,and     
again1 what can be  opposed to force1   
but force8 ,ulpian observes that        

,cassius says1 it is  lawful to repel   
force by force1 and it is a right       
apparently provided  by nature to repel 
arms with arms1 with whom ,ovid agrees1 
observing  that the laws permit us to   
take up arms against those that bear    
them4    ,,ii4 ,the observation that all
 war is not repugnant to the law of     
nature1  may be more amply proved from  
sacred history4 ,for when ,abraham with 
his  servants and confederates had      
gained a victory1 by force of arms1 over
  the four ,kings1 who had plundered    
,sodom1 ,god approved of his act by  the
 mouth of his priest ,melchisedech1 who 
said to him1 ,blessed be the  most high 
,god1 who hath delivered thine enemies  
into thine hand4 ,gen4  xiv4 #bj4 ,now  
,abraham had taken up arms1 as appears  
from the history1  without any special  
command from ,god4 ,but this man1 no    
less eminent for  sanctity than wisdom1 
felt himself authorized by the law of   
nature1  as it is admitted by the       
evidence of ,berosus1 and ,orpheus1 who 

were  strangers4    ,there is no        
occasion to appeal to the history of the
 seven nations1  whom ,god delivered up 
into the hands of the ,israelites to be 
destroyed4  ,for there was a special    
command to execute the judgment of ,god 
upon  nations guilty of the greatest    
crimes4 ,from whence these wars are     
literally styled in scripture1 ,battles 
of the ,lord1 as undertaken1 not  by    
human will1 but by divine appointment4  
,the xvii4 chapter of ,exodus  supplies 
a passage more to the purpose1 relating 
the overthrow which  the ,israelites1   
conducted by ,moses and ,joshua1 made of
 the ,amalekites4  ,in this act1 there  
was no express commission from ,god1 but
 only an  approval after it was done4   
,but in the xix4 chap4 of ,deut4 ver4   
#aj1  #ae4 ,god has prescribed general  
and standing laws to his people on  the 
manner of making war1 by this           
circumstance shewing that a war  may be 
just without any express commandment    
from him4 ,because in the  same passage1

 a plain distinction is made between the
 case of the  seven nations and that of 
others4 ,and as there is no special     
edict  prescribing the just causes for  
which war may be undertaken1 the        
determination of them is left to the    
discovery of natural reason4 ,of  this  
kind is the war of ,jephthah against the
 ,ammonites1 in defence of  their       
borders4 ,jud4 xi4 and the war of ,david
 against the same people  for having    
violated the rights of his ,ambassadors4
 #b ,sam4 x4 ,to the  preceding         
observations may be added1 what the     
inspired writer of the  ,epistle to the 
,hebrews says of ,gideon1 ,barack1      
,sampson1 ,jephthah1  ,david1 ,samuel1  
and others1 who by faith made war upon  
kingdoms1  prevailed in war and put     
whole armies of their enemies to flight4
 ,heb4  xi4 #cc1 #cd4 ,the whole tenor  
of this passage shews1 that the word    
faith  implies a persuasion1 that what  
they did was believed to be agreeable   
to the will of ,god4 ,in the same       

manner1 ,david is said1 by a woman      
distinguished for her wisdom1 #a ,sam4  
xxv4 #bh4 to fight the battles of  the  
,lord1 that is to make lawful and just  
wars4    ,,iii4 ,proofs of what has been
 advanced1 may be drawn also from the   
consent of all1 especially1 of the      
wisest nations4 ,there is a  celebrated 
passage in ,cicero's speech for ,milo1  
in which1 justifying  recourse to force 
in defence of life1 he bears ample      
testimony to the  feelings of nature1   
who has given us this law1 which is not 
written1  but innate1 which we have not 
received by instruction1 hearing or     
reading1 but the elements of it have    
been engraven in our hearts  and minds  
with her own hand3 a law which is not   
the effect of habit  and acquirement1   
but forms a part in the original        
complexion of our  frame3 so that if our
 lives are threatened with assassination
 or open  violence from the hands of    
robbers or enemies1 ,,any means of      
defence  would be allowed and laudable4 

,he proceeds1 reason has taught this to 
the learned1 necessity to the           
barbarians1 custom to nations1 and      
nature  herself to wild beasts1 to use  
every possible means of repelling force 
offered to their bodies1 their limbs and
 their lives4 ,caius and ,lawyer  says1 
natural reason permits us to defend     
ourselves against dangers4  ,and        
,florentinus1 another legal authority1  
maintains1 that whatever any  one does  
in defence of his person ought to be    
esteemed right4 ,josephus  observes1    
that the love of life is a law of nature
 strongly implanted  in all creatures1  
and therefore we look upon those as     
enemies1 who  would openly deprive us of
 it4    ,this principle is founded on   
reasons of equity1 so evident1 that     
even in the brute creation1 who have no 
idea of right1 we make a  distinction   
between attack and defence4 ,for when   
,ulpian had said1  that an animal       
without knowledge1 that is without the  
use of reason1  could not possibly do   

wrong1 he immediately adds1 that when   
two animals  fight1 if one kills the    
other1 the distinction of ,quintius     
,mutius  must be admitted1 that if the  
aggressor were killed no damages could  
be recovered2 but if the other1 which   
was attacked1 an action might  be       
maintained4 ,there is a passage in      
,pliny1 which will serve for an         
explanation of this1 he says that the   
fiercest lions do not fight with  each  
other1 nor do serpents bite serpents4   
,but if any violence is done  to the    
tamest of them1 they are roused1 and    
upon receiving any hurt1  will defend   
themselves with the greatest alacrity   
and vigour4    ,,iv4 ,from the law of   
nature then which may also be called the
 law of  nations1 it is evident that all
 kinds of war are not to be condemned4  
,in the same manner1 all history and the
 laws of manners of every people        
sufficiently inform us1 that war is not 
condemned by the voluntary law  of      
nations4 ,indeed ,hermogenianus has     

said1 that wars were introduced  by the 
law of nations1 a passage which ought to
 be explained somewhat  differently from
 the general interpretation given to it4
 ,the meaning of  it is1 that certain   
formalities1 attending war1 were        
introduced by the  law of nations1 which
 formalities were necessary to secure   
the peculiar  privileges arising out of 
the law4 ,from hence a distinction1     
which  there will be occasion to use    
hereafter1 between a war with the usual 
formalities of the law of nations1 which
 is called just or perfect1 and  an     
informal war1 which does not for that   
reason cease to be just1 or  agreeable  
to right4 ,for some wars1 when made upon
 just grounds1 though  not exactly      
conformable1 yet are not repugnant to   
the law1 as will be  explained more     
fully hereafter4 ,by the law of the     
nations1 says ,livy1  provision is made 
to repel force by arms2 and ,florentinus
 declares1  that the law of nations     
allows us to repel violence and injury1 

in  order to protect our persons4    ,v4
 ,a greater difficulty occurs respecting
 the divine voluntary law4  ,nor is     
there any force in the objection that as
 the law of nature is  unchangeable1    
nothing can be appointed even by ,god   
himself contrary  to it4 ,for this is   
true only in those things1 which the law
 of nature  positively forbids or       
commands2 not in those which are tacitly
  permitted by the same law4 ,for acts  
of that kind1 not falling strictly      
within the general rule1 but being      
exceptions to the law of nature1  may be
 either forbidden or commanded4 ,the    
first objection usually made  against   
the lawfulness of war is taken from the 
law given to ,noah  and his posterity1  
,gen4 ix4 #e1 #f1 where ,god thus       
speaks1 ,surely the  blood of your lives
 will ,i require2 at the hand of every  
beast will ,i  require it1 and at the   
hand of every man2 at the hand of every 
man's  brother will ,i require the life 
of man4 ,whoever sheds man's blood1 by  

man shall his blood be shed2 for in the 
image of ,god made he man4 ,here  some  
take the phrase of requiring blood1 in  
the most general sense1 and  the other  
part1 that blood shall be shed in its   
turn1 they consider as  a bare threat1  
and not an approbation2 neither of which
 acceptations  can be admitted4 ,for the
 prohibition of shedding blood extends  
not  beyond the law itself1 which       
declares1 ,,thou ,,shalt ,,not ,,kill2  
but passes  no condemnation upon capital
 punishments or wars undertaken by      
public  authority4    ,neither the law  
of ,moses1 nor that given to ,noah      
established any thing  new1 they were   
only a declaratory repetition of the law
 of nature1 that  had been obliterated  
by depraved custom4 ,so that the        
shedding of blood  in a criminal and    
wanton manner is the only act prohibited
 by those  commandments4 ,thus every act
 of homicide does not amount to murder1 
but  only that1 which is committed with 
a wilful and malicious intention to     

destroy the life of an innocent person4 
,as to what follows about blood  being  
shed in return for blood1 it seems to   
imply not a mere act of  personal       
revenge1 but the deliberate exercise of 
a perfect right1 which  may be thus     
explained2 it is not unjust1 according  
to the principles  of nature that any   
one should suffer in proportion to the  
evil he has  done1 conformably to the   
judicial maxim of ,rhadamanthus1 that if
 any  one himself suffers what he has   
done1 it is but just and right4 ,the    
same opinion is thus expressed by       
,seneca the father2 it is but a just    
retaliation for any one to suffer in his
 own person the evil which  he intended 
to inflict upon another4 ,from a sense  
of this natural  justice1 ,cain knowing 
himself guilty of his brother's blood   
said1  whosoever finds me shall kill me4
    ,but as in those early times1 when  
men were few1 and aggressions rare1     
there was less occasion for examples1   
,god restrained by an express           

commandment the impulse of nature which 
appeared lawful1 he forbad any  one to  
kill the murderer1 at the same time     
prohibiting all intercourse  with him1  
even so far as not to touch him4#f      
,plato has established this in his laws1
 and the same rule prevailed  in        
,greece1 as appears from the following  
passage in ,euripides1 our  fathers of  
old did well in banishing from their    
intercourse and sight  any one that had 
shed another's blood2 imposing          
banishment by way of  atonement1 rather 
than inflicting death4 ,we find         
,thucydides of the  same opinion1 that  
anciently lighter punishments were      
inflicted for  the greatest crimes2 but 
in process of time1 as those penalties  
came  to be despised1 legislators were  
obliged to have recourse to death  in   
certain cases4 ,we may add to the above 
instances the remark of  ,lactantius1   
that as yet it appeared a sin to punish 
even the most  wicked men with death4   
,the conjecture of the divine will taken

 from the remarkable instance  of ,cain1
 whom no one was permitted to kill      
passed into a law1 so that  ,lanech1    
having perpetrated a similar deed1      
promised himself impunity  from this    
example4--,gen4 iv4 #bd4    ,but as     
before the deluge1 in the time of the   
,giants1 the practice of  frequent and  
wanton murders had prevailed2 upon the  
renewal of the  human race1 after the   
deluge1 that the same evil custom might 
not be  established1 ,god thought proper
 to restrain it by severer means4 ,the  
lenity of former ages was laid aside1   
and the divine authority gave  a        
sanction to the precepts of natural     
justice1 that whoever killed a  murderer
 should be innocent4 ,after tribunals   
were erected1 the power  over life was1 
for the very best reasons1 conferred    
upon the judges  alone4 ,still some     
traces of ancient manners remained in   
the right which  was granted1 after the 
introduction of the ,mosaic ,law1 to the
 nearest  in blood to the person killed4

    ,this interpretation is justified by
 the authority of ,abraham1 who1 with  a
 perfect knowledge of the law given to  
,noah1 took arms against the  four      
,kings1 fully persuaded that he was     
doing nothing in violation of  that law4
 ,in the same manner ,moses ordered the 
people to fight against  ,amalekites1   
who attacked them2 following in this    
case the dictates  of nature1 for he    
appears to have had no special          
communication with  ,god4 ,exod4 xvii4  
#i4 ,besides1 we find that capital      
punishments were  inflicted upon other  
criminals1 as well as murderers1 not    
only among  the ,gentiles1 but among    
those who had been impressed with the   
most  pious rules and opinions1 even the
 ,patriarchs themselves4 ,gen4 xxxviii4 
#bd4    ,indeed upon comparing the      
divine will with the light of nature1 it
 was  concluded1 that it seemed         
conformable to justice1 that other      
crimes  of great enormity should be     
subject to the same punishment as that  

of murder4 ,for there are some rights1  
such as those of reputation1  chastity1 
conjugal fidelity1 submission of        
subjects to their princes1  all of which
 are esteemed of equal value with life  
itself1 because on  the preservation of 
these the peace and comfort of life     
depend4 ,the  violation of any of those 
rights is little less than murder       
itself4    ,here may be applied the old 
tradition found among the ,jews1 that   
there  were many laws1 which were not   
,,all mentioned by ,moses1 given by ,god
  to the sons of ,noah2 as it was       
sufficient for his purpose1 that they   
should afterwards be comprehended in the
 peculiar laws of the ,hebrews4  ,thus  
it appears from xviii4 chap4 of         
,leviticus1 that there was an  ancient  
law against incestuous marriages1 though
 not mentioned by ,moses  in its proper 
place4 ,now among the commandments given
 by ,god to the  children of ,noah1 it  
is said1 that death was expressly       
declared to  be the punishment not only 

for murder1 but for adultery1 incest1   
and  robbery1 which is confirmed by the 
words of ,job xxxi4 #aa4 ,the law of    
,moses too1 for the sanction of capital 
punishments1 gives reasons which        
operate no less with other nations1 than
 with the ,jewish people4 ,levit4       
xviii4 #be-cj4 ,psa4 ci4 #e4 ,prov4 xx4 
#h4 ,and particularly respecting  murder
 it is said1 the land cannot be cleansed
 unless the blood of the  murderer be   
shed4 ,numb4 xxv4 #ca-cc4 ,besides1 it  
were absurd to suppose  that the ,jewish
 people were indulged with the privilege
 of maintaining  the public safety1 and 
that of individuals by capital          
punishments1 and  asserting their rights
 by war1 and that other kings and       
nations were  not allowed the same      
powers4 ,nor do we find that those kings
 or nations  were forewarned by the     
,prophets1 that the use of capital      
punishments1  and that all wars1 were   
condemned by ,god in the same manner as 
they  were admonished of all other sins4

 ,on the other hand1 can any one  doubt1
 as the law of ,moses bore such an      
express image of the divine  will       
respecting criminal justice1 whether    
other nations would not have  acted     
wisely in adopting it for their example8
 ,it is certain that the  ,greeks1 and  
the ,athenians in particular did so4    
,from hence came the  close resemblance 
which the ,jewish bore to the old       
,athenian law1 and  to that of the      
twelve tables of ,rome4 ,enough has been
 said1 to shew  that the law given to   
,noah cannot bear the interpretation of 
those1 who  derive from it their        
arguments against the lawfulness of all 
war4    ,,vi4 ,the arguments against the
 lawfulness of war1 drawn from the      
,gospel1  are more specious4 ,in        
examining which it will not be necessary
 to  assume1 as many do1 that the       
,gospel contains nothing more than the  
law  of nature1 except the rules of     
faith and the ,sacraments3 an           
assumption1  which in its general       

acceptation is by no means true4 ,it may
 readily be  admitted1 that nothing     
inconsistent with natural justice is    
enjoined  in the gospel1 yet it can     
never be allowed1 that the laws of      
,christ do  not impose duties upon us1  
above those required by the law of      
nature4  ,and those1 who think          
otherwise1 strain their arguments to    
prove that  many practices forbidden by 
the gospel1 as concubinage1 divorce1    
polygamy1 were made offences by the law 
of nature4 ,the light of nature  might  
point out the ,,honour of abstaining    
from such practices1 but the            
,,sinfulness of them could not have been
 discovered without a revelation  of the
 will of ,god4 ,who for instance would  
say1 that the ,christian  precept of    
laying down our lives for others was an 
obligation of the  law of nature8 #a    
,john iii4 #af4 ,it is said by ,justin  
the ,martyr1 that to  live according to 
the bare law of nature is not the       
character of a true  believer4 ,neither 

can we follow those1 who1 adopting      
another meaning of  no inconsiderable   
import1 construe the precept delivered  
by ,christ in  his sermon on the mount1 
into nothing more than an interpretation
 of  the ,mosaic ,law4 ,for the words1  
you have heard it was said to them of   
old1 but ,i say to ,,you1 which are so  
often repeated1 imply something  else4  
,those of old were no other than        
contemporaries of ,moses3 for  what is  
there repeated as said to those of ,,old
 are not the words of  the teachers of  
the law1 but of ,moses1 either          
,,literally1 or in ,,their  meaning4    
,they are cited by our ,saviour as his  
express words1 not as  interpretations  
of them3 ,thou shalt not kill1 ,exod4   
xx4 whoever  killeth shall be in danger 
of ,judgment1 ,levit4 xxi4 #ba4 ,numb4  
xxxv4 #af1  #ag1 #cj4 ,thou shalt not   
commit adultery1 ,exod4 xx4 whosoever   
shall  put away his wife1 let him give  
her a writing of divorcement4 ,deut4    
xxiv1 #a4 ,thou shalt not forswear      

thyself1 but shalt perform unto the     
,lord thine oaths4 ,exod4 xx4 #g4 ,numb4
 xxx4 #b4 ,an eye for an eye1 and  a    
tooth for a tooth1 may be demanded in   
justice4 ,levit4 xxxiv4 #bj4  ,deut4    
xix4 #ba4 ,thou shalt love thy          
neighbour1 that is1 an ,israelite4      
,levit4 xix4 #ah4 and thou shalt hate   
thine enemy1 that is1 any one  of the   
seven nations to whom friendship or     
compassion was forbidden  to be shewn4  
,exod4 xxxiv4 #aa4 ,deut4 vii4 #a4 ,to  
these may be added  the ,amalekites1    
with whom the ,israelites were commanded
 to maintain  irreconcileable war4      
,exod4 xxvii4 #ai4 ,deut4 xxv4 #ai4     
,but to understand the words of our     
,saviour1 we must observe that the  law 
of ,moses is taken in a double sense1   
either as containing some  principles in
 common with human laws1 such as        
imposing restraint upon  human crimes by
 the dread of exemplary punishments4    
,heb4 ii4 #b4 ,and  in this manner      
maintaining civil society among the     

,jewish people3  for which reason it is 
called1 ,heb4 vii4 #af1 the law of a    
carnal  commandment1 and ,rom4 iii4 #ag4
 the law of works3 or it may be taken   
in another sense1 comprehending the     
peculiar sanctions of a divine  law1    
requiring purity of mind1 and certain   
actions1 which might be  omitted without
 temporal punishments4 ,in this sense it
 is called a  spiritual law1 giving life
 to the soul4 ,the teachers of the law1 
and  the ,pharisees considering the     
first part as sufficient1 neglected to  
instruct the people in the second and   
more important branch1 deeming  it      
superfluous4 ,the truth of this may be  
proved1 not only from our own  writings1
 but from ,josephus also1 and the       
,jewish ,rabbis4 ,respecting  this      
second part we may observe1 that the    
virtues which are required  of          
,christians1 are either recommended or  
enjoined to the ,hebrews1  but not      
enjoined in the same degree and extent  
as to ,christians4 ,now  in both these  

senses ,christ opposes his own precepts 
to the old law4  ,from whence it is     
clear1 that his words contain more than 
a bare  interpretation of the ,mosaic   
law4 ,these observations apply not only 
to  the question immediately in hand1   
but to many others2 that we may not     
rest upon the authority of the ,mosaic  
law farther than is right4    ,,vii4    
,omitting therefore the less            
satisfactory proofs1 as a leading  point
 of evidence to shew that the right of  
war is not taken away by  the law of the
 gospel1 that passage in ,st4 ,paul's   
,epistle to ,timothy  may be referred   
to1 where the ,apostle says1 ,i exhort  
therefore  that1 first of all1          
supplications1 prayers1 intercessions1  
and giving  of thanks be made for all   
men2 for ,kings1 and for all that are in
  authority1 that we may lead a quiet   
and peaceable life1 in all  godliness   
and honesty2 for this is good and       
acceptable in the sight of  ,god our    
,saviour1 who would have all men to be  

saved1 and to come to  the knowledge of 
the truth4 #a ,eph4 ii4 #a1 #b1 #c4     
,from this passage1  the following      
conclusions may be drawn2 in the first  
place1 that  ,christian piety in kings  
is acceptable to ,god1 that their       
profession  of ,christianity does not   
abridge their rights of sovereignty4    
,justin  the ,martyr has said1 that in  
our prayers for ,kings1 we should beg   
that they may unite a spirit of wisdom  
with their royal power1 and  in the book
 called the ,constitutions of ,clement1 
the ,church prays for  ,christian       
rulers1 and that ,christian ,princes may
 perform an acceptable  service to ,god1
 by securing to other ,christians the   
enjoyment of quiet  lives4 ,the manner  
in which the ,sovereign secures this    
important end1  is explained in another 
passage from the same ,apostle4 ,rom4   
xiii4 #d4  ,he is the minister of ,god  
to thee for good4 ,but if thou do evil1 
fear1  for he beareth not the sword in  
vain2 for he is the minister of ,god1   

an avenger to execute wrath upon them1  
that do evil4 ,by the right  of the     
sword is understood the exercise of     
every kind of restraint1  in the sense  
adopted by the ,lawyers1 not only over  
offenders amongst  his own people1 but  
against neighboring nations1 who violate
 his own  and his people's rights4 ,to  
clear up this point1 we may refer to the
  second ,psalm1 which although it      
applies literally to ,david1 yet in its 
more full and perfect sense relates to  
,christ1 which may be seen by           
consulting other parts of scripture4    
,for instance1 ,acts iv4 #be4 xiii4     
#cc4 ,for that ,psalm exhorts all kings 
to worship the son of ,god1 shewing     
themselves1 as kings1 to be his         
ministers1 which may be explained by    
the words of ,st4 ,augustine1 who says1 
,in this1 kings1 in their royal         
capacity1 serve ,god according to the   
divine commandment1 if they  promote    
what is good1 and prohibit what is evil 
in their kingdoms1 not  only relating to

 human society1 but also respecting     
religion4 ,and in  another place the    
same writer says1 ,how can kings serve  
the ,lord in  fear1 unless they can     
prohibit and punish with due severity   
offences  against the law of ,god8 ,for 
the capacities in which they serve ,god1
 as  individuals1 and as kings1 are very
 different4 ,in this respect they  serve
 the ,lord1 as kings1 when they promote 
his service by means which  they could  
not use without regal power4    ,the    
same part of the ,apostle's writings    
supplies us with a second  argument1    
where the higher powers1 meaning kings1 
are said to be from  ,god1 and are      
called the ordinance of ,god2 from      
whence it is plainly  inferred that we  
are to honour and obey the king1 from   
motives of  conscience1 and that every  
one who resists him1 is resisting ,god4 
,if  the word ordinance meant nothing   
more than a bare permission1 that       
obedience which the ,apostle so         
strenuously enjoins would only have  the

 force of an imperfect obligation4 ,but 
as the word ordinance1 in  the original1
 implies an express commandment and     
appointment1 and as  all parts of the   
revealed will of ,god are consistent    
with each other1  it follows that the   
obedience of subjects to sovereigns is a
 duty of  supreme obligation4 ,nor is   
the argument at all weakened by its     
being  said1 that the ,sovereigns at the
 time when ,st4 ,paul wrote1 were not   
,christians4 ,for it is not universally 
true1 as ,sergius ,paulus1 the  deputy  
governor of ,cyprus1 had long before    
professed the ,christian  religion4     
,acts xiii4 #ab4 ,there is no occasion  
to mention the tradition  respecting    
,abgarus the ,king of ,edessa's ,epistle
 to our ,saviour2 a  tradition mingled  
with falsehood1 though1 in some measure 
founded  upon truth4 ,for the question  
did not turn upon the characters of the 
,princes1 whether they were godly or    
not1 but whether ,,their holding the    
kingly office was repugnant to the law  

of ,god4 ,this ,st4 ,paul denies1       
maintaining that the kingly office1 even
 under all circumstances1 was  appointed
 by ,god1 therefore it ought to be      
honoured from motives of  conscience1   
which1 properly speaking1 are under the 
controul of ,god  alone4 ,so that ,nero1
 and ,king ,agrippa whom ,paul so       
earnestly entreats  to become a         
,christian1 might have embraced         
,christianity1 and still  retained1 the 
one his regal1 and the other his        
imperial authority1  which could not be 
exercised without the power of the      
sword4 ,as the  legal sacrifices might  
formerly be performed by wicked         
,priests2 in the  same manner regal     
power would retain its indelible        
sanctity1 though in  the hands of an    
ungodly man4    ,a third argument is    
derived from the words of ,john the     
,baptist1 who1  at a time when many     
thousands of the ,jews served in the    
,roman armies1  as appears from the     
testimony of ,josephus and others1 being

 seriously  asked by the soldiers1 what 
they should do to avoid the wrath of    
,god1  did not command them to renounce 
their military calling1 which he ought  
to have done1 had it been inconsistent  
with the law and will of ,god1  but to  
abstain from violence1 extortion1 and   
false accusation1 and to  be content    
with their wages4 ,in reply to these    
words of the ,baptist1  so plainly      
giving authority to the military        
profession1 many observed  that the     
injunction of the ,baptist is so widely 
different from the  precepts of ,christ1
 that ,,he seemed to preach one doctrine
 and our ,,lord  another4 ,which is by  
no means admissible1 for the following  
reasons4  ,both our ,saviour and the    
,baptist made repentance the substance  
of  their doctrine2 for the kingdom of  
heaven was at hand4 ,by the ,kingdom  of
 ,heaven is meant a new law1 as the     
,hebrews used to give the name  of      
,kingdom to their law4 ,christ himself  
says the ,kingdom of ,heaven  began to  

suffer violence from the days of ,john  
the ,baptist4 ,matt4 xi4  #ab4 ,john is 
said to have preached the baptism of    
repentance for the  remission of sins4  
,mark i4 #d4 ,the ,apostles are said to 
have done the  same in the name of      
,christ4 ,acts xi4 #ch4 ,john requires  
fruits worthy  of repentance1 and       
threatens destruction to those1 who do  
not produce  them4 ,matt4 iii4 #h1 #aj4 
,he also requires works of charity above
 the  law4 ,luke iii4 #b4 ,the law is   
said to have continued till ,john1 that 
is1 a more perfect law is said to have  
commenced from his instruction4  ,he was
 called greater than the prophets1 and  
declared to be one sent  to give the    
knowledge of salvation to the people by 
announcing the  gospel4 ,he makes no    
distinction between himself and ,jesus  
on the score  of doctrine1 only         
ascribing pre-eminence to ,christ as the
 promised  ,messiah1 the ,lord of the   
,kingdom of ,heaven1 who would give the 
power of  the holy spirit to those1 who 

believed in him4 ,in short1 the dawning 
rudiments of knowledge1 which proceeded 
from the forerunner1 were more          
distinctly unfolded and cleared up1 by  
,christ himself1 the light of the       
world4    ,there is a fourth argument1  
which seems to have no little weight1   
proceeding upon the supposition1 that if
 the right of inflicting  capital       
punishments were abolished1 and princes 
were deprived of the  power of the sword
 to protect their subjects against the  
violence of  murderers and robbers1     
wickedness would triumphantly prevail1  
and  the world would be deluged with    
crimes1 which1 even under the best      
established governments1 are with so    
much difficulty prevented or            
restrained4 ,if then it had been the    
intention of ,christ to introduce  such 
an order of things as had never been    
heard of1 he would  undoubtedly by the  
most express and particular words1 have 
condemned  all capital punishments1 and 
all wars1 which we never read that he   

did4 ,for the arguments1 brought in     
favor of such an opinion1 are  for the  
most part very indefinite and obscure4  
,now both justice and  common sense     
require such general expressions to be  
taken in a limited  acceptation1 and    
allow us1 in explaining ambiguous words1
 to depart  from their literal meaning1 
where our strictly adhering to it would 
lead to manifest inconvenience and      
detriment4    ,there is a fifth         
argument1 maintaining that no proof can 
be adduced  that the judicial part of   
the ,mosaic ,law1 inflicting sentence of
  death1 ever ceased to be in force1    
till the city of ,jerusalem1 and  the   
civil polity of the ,jews were utterly  
destroyed1 without hopes  of            
restoration4 ,for in the ,mosaic        
dispensation no assignable term is      
named for the duration of the law2 nor  
do ,christ and his ,apostles ever  speak
 of its abolition1 except in allusion to
 the overthrow of the  ,jewish state4   
,indeed on the contrary1 ,st4 ,paul     

says1 that the ,high  ,priest was       
appointed to judge according to the law 
of ,moses4 ,acts xxiv4  #c4 ,and ,christ
 himself1 in the introduction to his    
precepts1 declares  that he came not to 
destroy the law1 but to fulfil it4      
,matt4 v4 #ag4  ,the application of his 
meaning to the ritual law is very plain1
 for  it was only the outline and shadow
 of that perfect body1 of which the     
,gospel formed the substance4 ,but how  
is it possible that the judicial  laws  
should stand1 if ,christ1 according to  
the opinion of some1  abolished them by 
his coming8 ,now if the law remained in 
force as long  as the ,jewish state     
continued1 it follows that the ,jewish  
converts to  ,christianity if called to 
the magisterial office1 could not refuse
 it  on the score of declining to pass  
sentence of death1 and that they  could 
not decide otherwise than the law of    
,moses had prescribed4    ,upon weighing
 the whole matter1 the slightest ground 
cannot be  discovered for supposing that

 any pious man1 who had heard those     
words from our ,saviour himself1 would  
have understood them in a sense         
different from that which has been here 
given4 ,it must however be  admitted    
that1 before the ,gospel dispensation   
permission or impunity  was granted to  
certain acts and dispositions1 which it 
would neither  be necessary nor proper  
to examine at present1 upon which       
,christ did  not allow his followers to 
act4 ,of this kind was the permission to
  put away a wife for every offence1 and
 to seek redress by law for  every      
injury4 ,now between the positive       
precepts of ,christ and those           
permissions there is a difference1 but  
not a contradiction4 ,for he  that      
retains his wife1 and he that forgoes   
his right of redress1 does  nothing     
,,contrary to the law1 but rather acts  
agreeably to the ,,spirit  of it4 ,it is
 very different with a judge1 who is not
 merely permitted1  but commanded by the
 law to punish a murderer with death1   

incurring  guilt in the sight of ,god1  
if he should act otherwise4 ,if ,christ 
had  forbidden him to put a murderer to 
death1 his prohibition would have       
amounted to a contradiction1 and it     
would have abolished the law4    ,the   
example of ,cornelius the ,centurion    
supplies a sixth argument in  favor of  
this opinion4 ,in receiving the holy    
spirit from ,christ1 he  received an    
indubitable proof of his justification2 
he was baptized  into the name of       
,christ by ,peter1 yet we do not find   
that he either  had resigned or was     
advised by the ,apostle to resign his   
military  commission4 ,in reply to which
 some maintain1 that when instructed  by
 ,peter in the nature of the ,christian 
religion1 he must have been  instructed 
to form the resolution of quitting his  
military calling4  ,there would be some 
weight in their answer1 if it could be  
shown that  an absolute prohibition of  
war is to be found among the precepts   
of ,christ4 ,and as it can be found     

nowhere else1 it would have been        
inserted in its proper place among the  
precepts of ,christ1 that after  ages   
might not have been ignorant of the     
rules of duty4 ,nor as may be  seen in  
the xix4 chap4 of the ,acts of the      
,apostles and the #aith ver4  is it     
usual with ,st4 ,luke1 in cases where   
the personal character and  situation of
 converts required an extraordinary     
change of life and  disposition1 to pass
 over such a circumstance without       
notice4    ,the seventh argument is like
 the preceding1 and is taken from the   
example of ,sergius ,paulus1 which has  
been already mentioned4 ,in the  history
 of his conversion there is not the     
least intimation of his  abdicating the 
magistracy1 or being required to do so4 
,therefore  silence respecting a        
circumstance1 which would naturally and 
necessarily have been mentioned1 may be 
fairly taken as a proof that  it never  
existed4 ,the conduct of ,st4 ,paul     
supplies us with an eighth  argument on 

this subject4 ,when he understood that  
the ,jews lay in  wait for an           
opportunity to seize and kill him1 he   
immediately gave  information of their  
design to the commander of the ,roman   
garrison1  and when the commander gave  
him a guard of soldiers to protect him  
on  his journey1 he made no             
remonstrance1 nor ever hinted either to 
the  commander or the soldiers that it  
was displeasing to ,god to repel force  
by force4 ,yet this is the same ,apostle
 who1 as appears from all his  writings1
 #b ,tim4 iv4 #b4 neither himself       
neglected nor allowed others  to neglect
 any opportunity of reminding men of    
their duty4 ,in addition  to all that   
has been said1 it may be observed1 that 
the peculiar end  of what is lawful and 
binding1 must itself be lawful and      
binding also4  ,it is lawful to pay     
tribute1 and according to ,st4 ,paul's  
explanation1  it is an act binding upon 
the conscience1 ,rom4 xiii4 #c1 #d1 #f4 
,for the  end of tribute is to supply   

the state with the means of protecting  
the good1 and restraining the wicked4   
,there is a passage in ,tacitus  very   
applicable to the present question4 ,it 
is in the fourth book of  his history1  
in the speech of ,petilius ,cerealis1   
who says1 the peace  of nations cannot  
be preserved without armies1 nor can    
armies be  maintained without pay1 nor  
pay supplied without taxation4 ,there is
 a  sentiment similar to this of the    
historian1 in ,st4 ,augustin1 he says1  
for this purpose we pay tribute1 that   
the soldier may be provided with  the   
necessaries of life4    ,the tenth      
argument is taken from that part of the 
xxv4 chap4 of the  ,acts of the         
,apostles1 where ,paul says1 ,if ,i have
 wronged any man1 or  done any thing    
worthy of death1 ,i refuse not to die4  
,from whence the  opinion of ,st4 ,paul 
may be gathered1 that1 even after the   
publication  of the gospel1 there were  
certain crimes which justice not only   
allowed  but required to be punished    

with death2 which opinion ,st4 ,peter   
also  maintains4 ,but if it had been the
 will of ,god that capital punishments  
should be abolished1 ,paul might have   
cleared himself1 but he ought not  to   
have left an impression on the minds of 
men1 that it was at that  time equally  
lawful as before to punish the guilty   
with death4 ,now as  it has been proved1
 that the coming of ,christ did not take
 away the  right of inflicting capital  
punishments1 it has at the same time    
been  proved1 that war may be made upon 
a multitude of armed offenders1 who  can
 only be brought to justice by defeat in
 battle4 ,the numbers1 the  strength and
 boldness of the aggressors1 though they
 may have their  weight in restraining  
our deliberations1 cannot in the least  
diminish  our right4    ,the substance  
of the eleventh argument rests not only 
upon our  ,saviour's having abolished   
those parts of the ,mosaic law1 which   
formed  a wall of separation between the
 ,jews and other nations1 but upon  his 

allowing the moral parts to remain1 as  
standing rules1 approved  by the law of 
nature1 and the consent of every        
civilized people1 and  containing       
whatever is good and virtuous4    ,now  
the punishing of crimes1 and the taking 
up arms to avenge or ward  off injuries 
are among those actions1 which by the   
law of nature  rank as laudable1 and are
 referred to the virtues of justice and 
beneficence4 ,and here is the proper    
place to animadvert slightly upon  the  
mistake of those1 who derive the rights 
of war1 possessed by the  ,israelites1  
solely from the circumstance of ,god    
having given them the  land of ,canaan  
and commissioned them to drive out the  
inhabitants4 ,this  may be one just     
reason1 but it is not the sole reason4  
,for1 prior to those times1 holy men    
guided by the light of nature  undertook
 wars1 which the ,israelites themselves 
afterwards did for  various reasons1 and
 ,david in particular1 to avenge the    
violated rights  of ambassadors4 ,but   

the rights1 which any one derives from  
the law of  nature1 are no less his own 
than if ,god had given them3 nor are    
those  rights abolished by the law of   
the ,gospel4    ,,viii4 ,let us now     
consider the arguments1 by which the    
contrary opinion  is supported1 that the
 pious reader may judge more easily1 to 
which  side the scale inclines4    ,in  
the first place1 the prophecy of ,isaiah
 is generally alleged1 who  says the    
time shall come1 when nations shall beat
 their swords into  plow-shares1 and    
turn their spears into pruning hooks4   
,nation shall  not lift up sword against
 nation1 neither shall they learn war   
any  more4 ii4 #d4 ,but this prophecy1  
like many others1 is to be taken        
conditionally1 alluding to the state of 
the world that would take  place1 if all
 nations would submit to the law of     
,christ1 and make  it the rule of life1 
to which purpose ,god would suffer      
nothing to  be wanting on his part4 ,for
 it is certain1 that if all people were 

,christians1 and lived like ,christians1
 there would be no wars1 which          
,arnobius expresses thus1 ,if all men1  
knowing that it is not their  corporeal 
form alone which makes them men1 but the
 powers of the  understanding1 would    
lend a patient ear to his salutary and  
pacific  instructions1 if they would    
trust to his admonitions rather than to 
the  swelling pride and turbulence of   
their senses1 iron would be employed    
for instruments of more harmless and    
useful operations1 the world enjoy  the 
softest repose and be united in the     
bands of inviolable treaties4  ,on this 
subject ,lactantius1 reproaching the    
,pagans with the deification  of their  
conquerors1 says1 what would be the     
consequence1 if all men  would unite in 
concord8 ,which might certainly be      
brought to pass1  if1 abandoning ruinous
 and impious rage1 they would live in   
justice  and innocence4 ,or this passage
 of the prophecy must be understood     
literally1 and1 if taken in that sense1 

it shews that it is not yet  fulfilled1 
but its accomplishment must be looked   
for in the general  conversion of the   
,jewish people4 ,but1 which ever way you
 take it1 no  conclusion can be drawn   
from it against the justice of war1 as  
long as  violent men exist to disturb   
the quiet of the lovers of peace4#g     
,,ix4 ,in examining the meaning of      
written evidence1 general custom1 and   
the opinions of men celebrated for their
 wisdom have usually great  weight2 a   
practice which it is right to observe in
 the interpretation  of holy scripture4 
,for it is not likely that churches1    
which had been  founded by the          
,apostles1 would either suddenly or     
universally have  swerved from those    
opinions1 which the ,apostles had       
briefly expressed1  in writing1 and     
afterwards more fully and clearly       
explained to them  with their own lips1 
and reduced to practice4 ,now certain   
expressions  of the primitive           
,christians are usually alleged by those

 who are  adverse to all wars1 whose    
opinions may be considered and refuted  
in  three points of view4    ,in the    
first place1 from these expressions     
nothing more can be gathered  than the  
private opinions of certain individuals1
 but no public  opinion of the          
,churches4 ,besides these expressions   
for the most part  are to be found only 
in the writings of ,origen1 ,tertullian 
and some  few others1 who wished to     
distinguish themselves by the brilliancy
 of  their thoughts1 without regarding  
consistency in their opinions4 ,for     
this same ,origen says1 that ,bees were 
given by ,god as a pattern for  men to  
follow in conducting just1 regular1 and 
necessary wars2 and  likewise           
,tertullian1 who in some parts seems to 
disapprove of capital  punishments1 has 
said1 ,no one can deny that it is good  
the guilty  should be punished4 ,he     
expresses his doubts respecting the     
military  profession1 for in his book   
upon idolatry1 he says1 it is a fit     

matter  of inquiry1 whether believers   
can take up arms1 or whether any of  the
 military profession can be admitted as 
members of the ,christian  ,church4 ,but
 in his ,book entitled1 the ,,soldier',s
 ,,crown1 after some  objections against
 the profession of arms1 he makes a     
distinction  between those who are      
engaged in the army before baptism1 and 
those  who entered after they had made  
the baptismal vow4 ,it evidently1  says 
he alters the case with those who were  
soldiers before their  conversion to    
,christianity2 ,john admitted them to   
baptism1 in one  instance ,christ       
approved1 and in another ,peter         
instructed a faithful  ,centurion3 yet  
with this stipulation1 that they must   
either like  many others1 relinquish    
their calling1 or be careful to do      
nothing  displeasing to ,god4 ,he was   
sensible then that they continued in the
  military profession after baptism1    
which they would by no means have  done1
 if they had understood that all war was

 forbidden by ,christ4 ,they  would have
 followed the example of the            
,soothsayers1 the ,magi1 and other      
professors of forbidden arts1 who ceased
 to practice them1 when they  became    
,christians4 ,in the book quoted above1 
commending a soldier1 who  was at the   
same time a ,christian1 he says1 ,o     
,soldier glorious in ,god4    ,the      
second observation applies to the case  
of those1 who declined or  even refused 
bearing arms1 on account of the         
circumstances of the  times1 which would
 have required them to do many acts     
inconsistent with  their ,christian     
calling4 ,in ,dolabella's letter to the 
,ephesians1 which  is to be found in    
,josephus1 we see that the ,jews        
requested an exemption  from military   
expeditions1 because1 in mingling with  
strangers1 they  could not conveniently 
have observed the rites of their own    
laws and  would have been obliged to    
bear arms1 and to make long marches on  
the  ,sabbaths4 ,and we are informed by 

,josephus that1 for the same reasons1   
the ,jews obtained their discharge of   
,l4 ,lentulus4 ,in another part1 he     
relates that when the ,jews had been    
ordered to leave the city of ,rome1     
some of them enlisted in the army1 and  
that others1 who out of respect  to the 
laws of their country1 for the reasons  
before mentioned1 refused  to bear arms1
 were punished4 ,in addition to these a 
third reason may  be given1 which was   
that they would have to fight against   
their own  people1 against whom it was  
unlawful to bear arms1 especially when  
they  incurred danger and enmity for    
adhering to the ,mosaic law4 ,but the   
,jews1 whenever they could do it1       
without these inconveniences1 served    
under foreign princes1 previously       
stipulating1 as we are informed by      
,josephus1 for liberty to live according
 to the laws and rules of their  own    
country4 ,tertullian objects to the     
military service of his own  times on   
account of dangers1 and inconveniences  

very similar to those1  which deterred  
the ,jews4 ,in his book on ,idolatry1 he
 says1 it is  impossible to reconcile   
the oath of fidelity to serve under the 
banners  of ,christ1 with that to serve 
under the banners of the ,devil4        
,because  the soldiers were ordered to  
swear by ,jupiter1 ,mars1 and the other 
,heathen ,gods4 ,and in his book on the 
,soldier's ,crown1 he asks1 if the      
soldier be to keep watch before the     
temples1 which he has renounced1 to  sup
 where he is forbidden by the ,apostle1 
and to guard in the night the  ,gods1   
whom he has abjured in the day8 ,and he 
proceeds with asking1 if  there be not  
many other military duties1 which ought 
to be regarded in  the light of sins8   
,the third point of view1 in which the  
subject is to be considered1  relates to
 the conduct of those primitive         
,christians1 who1 in the  ardour of     
zeal1 aimed at the most brilliant       
attainments1 taking the  divine counsels
 for precepts of obligation4 ,the       

,christians1 says  ,athenagoras1 never  
go to law with those1 who rob them4     
,salvian says1 it was commanded by      
,christ that we should relinquish  the  
object of dispute1 rather than engage in
 law suits4 ,but this1  taken in so     
general an acceptation1 is rather by the
 way of counsel1  in order to attain to 
a sublimer mode of life1 than intended  
as a  positive precept4 ,thus many of   
the primitive ,fathers condemned all    
oaths without exception1 yet ,st4 ,paul1
 in matters of great importance1  made  
use of these solemn appeals to ,god4 ,a 
,christian in ,tatian said1  ,i refuse  
the office of ,praetor1 and in the words
 of ,tertullian1 a  ,christian is not   
ambitious of the ,aedile's office4 ,in  
the same manner  ,lactantius maintains  
that a just man1 such as he wishes a    
,christian  to be1 ought not to engage  
in war1 nor1 as all his wants can be    
supplied at home1 even to go to sea4    
,how many of the primitive fathers      
dissuade ,christians from second        

marriages8 ,all these counsels are good1
  recommending excellent attainments1   
highly acceptable to ,god1 yet they  are
 not required of us1 by any absolute    
law4 ,the observations already  made are
 sufficient to answer the objections    
derived from the primitive  times of    
,christianity4    ,now in order to      
confirm our opinions1 we may observe    
that they have  the support of writers1 
even of greater antiquity1 who think    
that  capital punishments may be        
inflicted1 and that wars1 which rest    
upon  the same authority1 may be        
lawfully engaged in by ,christians4     
,clemens  ,alexandrinus says1 that a    
,christian1 if1 like ,moses1 he be      
called to  the exercise of sovereign    
power1 will be a living law to his      
subjects1  rewarding the good1 and      
punishing the wicked4 ,and1 in another  
place1  describing the habit of a       
,christian1 he says1 it would become him
 to  go barefoot1 unless he were a      
soldier4 ,in the work usually entitled  

the ,,constitutions ,,of ,,clemens      
,,romanus1 we find that it is not all   
killing which is considered unlawful1   
but only that of the innocent2  yet the 
administration of judicial punishments  
must be reserved to the  supreme power  
alone4 ,but without resting upon        
individual authorities1  we can appeal  
to the public authority of the church   
which ought to  have the greatest       
weight4 ,from hence it is evident that  
none were ever  refused baptism1 or     
excommunicated by the church1 merely for
 bearing  arms1 which they ought to have
 been1 had the military profession been 
repugnant to the terms of the new       
covenant4 ,in the ,,constitutions just  
quoted1 the writer speaking of those    
who1 in the primitive times1  were      
admitted to baptism1 or refused that    
ordinance1 says1 let a  soldier who     
desires to be admitted be taught to     
forbear from violence1  and false       
accusations1 and to be content with his 
regular pay4 ,if he  promises obedience 

let him be admitted4 ,tertullian in his 
,apology1  speaking in the character of 
,christians1 says1 ,we sail along with  
you1  and we engage in the same wars1   
having a little before observed1 we  are
 but strangers1 yet we have filled all  
your cities1 your islands1  your        
castles1 your municipal towns1 your     
councils1 and even your  camps4 ,he had 
related in the same book that rain had  
been obtained  for the ,emperor ,marcus 
,aurelius by the prayers of the         
,christian  soldiers4#h ,in his book of 
the crown1 he commends a soldier1 who   
had  thrown away his garland1 for a     
courage superior to that of his brethren
  in arms1 and informs us that he had   
many ,christian fellow soldiers4    ,to 
these proofs may be added the honours of
 ,martyrdom given by the  ,church to    
some soldiers1 who had been cruelly     
persecuted1 and had even  suffered death
 for the sake of ,christ1 among whom are
 recorded three of  ,st4 ,paul's        
companions1 ,cerialis who suffered      

martyrdom under ,decius2  ,marinus under
 ,valerian2 fifty under ,aurelian1      
,victor1 ,maurus1 and  ,valentinus1 a   
lieutenant general under ,maximian4     
,about the same time  ,marcellus the    
,centurion1 ,severian under ,licinius4  
,cyprian1 in speaking  of ,laurentinus1 
and ,ignatius1 both ,africans1 says1    
,they too served in  the armies of      
earthly princes1 yet they were truly    
spiritual soldiers  of ,god1 defeating  
the wiles of the ,devil by a steady     
confession of the  name of ,christ1 and 
earning the palms and crowns of the     
,lord by their  sufferings4 ,and from   
hence it is plain what was the general  
opinion  of the primitive ,christians   
upon war1 even before the ,emperors     
became  ,christians4    ,it need not be 
thought surprising1 if the ,christians  
of those times  were unwilling to appear
 at trials for life1 since1 for the most
  part1 the persons to be tried were    
,christians4 ,in other respects too1    
besides being unwilling to witness the  

unmerited sufferings of their           
persecuted brethren1 the ,roman laws    
were more severe than ,christian  lenity
 could allow of1 as may be seen from the
 single instance of the  ,silanian      
decree of the ,senate4#i ,indeed capital
 punishments were not  abolished even   
after ,constantine embraced and began to
 encourage the  ,christian religion4 ,he
 himself among other laws enacted one   
similar to  that of the ancient ,romans1
 for punishing parricides1 by sewing    
them  in a sack with certain animals1   
and throwing them into the sea1 or the  
nearest river4 ,this law is to be found 
in his code under the title of  the     
murders of parents or children4 ,yet in 
other respects he was so  gentle in     
punishing criminals1 that he is blamed  
by many historians  for his excessive   
lenity4 ,constantine1 we are informed by
 historians1  had at that time many     
,christians in his army1 and he used the
 name  of ,christ as the motto upon his 
standards4 ,from that time too the      

military oath was changed to the form1  
which is found in ,vegetius1 and  the   
soldier swore1 ,by ,god1 and ,christ1   
and the holy spirit1 and the  majesty of
 the ,emperor1 to whom as next to ,god1 
homage and reverence  are due from      
mankind4 ,nor out of so many ,bishops at
 that time1 many  of whom suffered the  
most cruel treatment for their religion1
 do we  read of a single one1 who       
dissuaded ,constantine1 by the terrors  
of  divine wrath from inflicting capital
 punishments1 or prosecuting wars1  or  
who deterred the ,christians1 for the   
same reasons1 from serving  in the      
armies4 ,though most of those ,bishops  
were strict observers  of discipline1   
who would by no means dissemble in      
points relating  to the duty of the     
,emperors or of others4 ,among this     
class1 in the  time of ,theodosius1 we  
may rank ,ambrose1 who in his seventh   
discourse  says1 there is nothing wrong 
in bearing arms2 but to bear arms from  
motives of rapine is a sin indeed1 and  

in his first book of ,offices1  he      
maintains the same opinion1 that the    
courage which defends one's  country    
against the incursions of barbarians1 or
 protects one's family  and home from   
the attacks of robbers1 is complete     
justice4 ,these  arguments so decidedly 
shew the opinions of the primitive      
,christians  in the support of just and 
necessary war1 that the subject requires
 no  farther proof or elucidation4      
,nor is the argument invalidated by a   
fact pretty generally known1 that       
,bishops and other ,christians often    
interceded in behalf of criminals1  to  
mitigate the punishment of death1 and   
that any1 who had taken  refuge in      
churches1 were not given up1 but upon   
the promise of their  lives being       
spared4 ,a custom was introduced        
likewise of releasing  all prisoners    
about the time of ,easter4 ,but all     
these instances1 if  carefully examined1
 will be found the voluntary acts of    
,christian  kindness1 embracing every   

opportunity to do good1 and not a       
settled  point of public opinion        
condemning all capital punishments4     
,therefore  those favours were not      
universal2 but limited to times and     
places1  and even the intercessions     
themselves were modified with certain   
exceptions4#aj          ,,chapter ,,iii4
    ,,the ,,division ,,of ,,war ,,into  
,,public ,,and ,,private ,,and ,,the    
,,nature ,,of ,,sovereign  ,,power4     
,the ,division of ,war into public and  
private--,examples to prove      that   
all private ,war is not repugnant to the
 ,law of ,nature since      the erection
 of ,courts of ,justice--,the ,division 
of ,public ,war      into formal1 and   
informal--,whether the suppression of   
,tumults by      subordinate            
,magistrates be properly public         
,war--,civil ,power1 in      what it    
consists--,sovereign ,power further     
considered--,the opinion      of those1 
who maintain that the ,sovereign ,power 
is always in the      people1 refuted1  

and their arguments answered--,mutual   
subjection      refuted--,cautions      
requisite to understand the nature of   
,sovereign      ,power--,distinction of 
the real differences that exist under   
similar      names--,distinction between
 the right to ,sovereign ,power1 and the
      mode of exercising it4      ,i4   
,the first and most necessary divisions 
of war are into one kind  called        
private1 another public1 and another    
mixed4 ,now public war is  carried on by
 the person holding the sovereign power4
 ,private war is  that which is carried 
on by private persons without authority 
from the  state4 ,a mixed war is that   
which is carried on1 on one side by     
public  authority1 and on the other by  
private persons4 ,but private war1 from 
its greater antiquity1 is the first     
subject for inquiry4    ,the proofs that
 have been already produced1 to shew    
that to repel  violence is not repugnant
 to natural law1 afford a satisfactory  
reason  to justify private war1 as far  

as the law of nature is concerned4  ,but
 perhaps it may be thought that since   
public tribunals have been  erected1    
private redress of wrongs is not        
allowable4 ,an objection which  is very 
just4 ,yet although public trials and   
courts of justice are  not institutions 
of nature1 but erected by the invention 
of men1 yet  as it is much more         
conducive to the peace of society for a 
matter in  dispute to be decided by a   
disinterested person1 than by the       
partiality  and prejudice of the party  
aggrieved1 natural justice and reason   
will  dictate the necessity and         
advantage of every one's submitting to  
the  equitable decisions of public      
judges4 ,paulus1 the ,lawyer1 observes  
that  what can be done by a magistrate  
with the authority of the state1  should
 never be intrusted to individuals2 as  
private redress would give  rise to     
greater disturbance4 ,and the reason1   
says ,king ,theodoric1  why laws were   
invented1 was to prevent any one from   

using personal  violence1 for wherein   
would peace differ from all the         
confusion of war1  if private disputes  
were terminated by force8 ,and the law  
calls it  force for any man to seize    
what he thinks his due1 without seeking 
a  legal remedy4    ,,ii4 ,it is a      
matter beyond all doubt that the liberty
 of private  redress1 which once        
existed1 was greatly abridged after     
courts of  justice were established4    
,yet there may be cases1 in which       
private  redress must be allowed1 as for
 instance1 if the way to legal justice  
were not open4 ,for when the law        
prohibits any one from redressing his   
own wrongs1 it can only be understood to
 apply to circumstances where  a legal  
remedy exists4 ,now the obstruction in  
the way to legal redress  may be either 
temporary or absolute4 ,temporary1 where
 it is impossible  for the injured party
 to wait for a legal remedy1 without    
imminent  danger and even destruction4  
,as for instance1 if a man were attacked

 in  the night1 or in a secret place    
where no assistance could be procured4  
,absolute1 either as the right1 or the  
fact may require4 ,now there are  many  
situations1 where the right must cease  
from the impossibility of  supporting it
 in a legal way1 as in unoccupied       
places1 on the seas1  in a wilderness1  
or desert island1 or any other place1   
where there  is no civil government4    
,all legal remedy too ceases by fact1   
when  subjects will not submit to the   
judge1 or if he refuses openly to take  
cognizance of matters in dispute4 ,the  
assertion that all private war  is not  
made repugnant to the law of nature by  
the erection of legal  tribunals1 may be
 understood from law given to the ,jews1
 wherein ,god  thus speaks by the mouth 
of ,moses1 ,exod4 xxii4 #b4 ,if a thief 
be found  breaking up1 that is1 by      
night1 and be smitten that he dies1     
there  shall no blood be shed for him1  
but if the sun be risen upon him1  there
 shall be blood shed for him4 ,now this 

law1 making so accurate a  distinction  
in the merits of the case1 seems not    
only to imply impunity  for killing any 
one1 in self-defence1 but to explain a  
natural right1  founded not on any      
special divine command1 but on the      
common principles  of justice4 ,from    
whence other nations have plainly       
followed the same  rule4 ,the passage of
 the twelve tables is well known1       
undoubtedly taken  from the old         
,athenian ,law1 ,if a thief commit a    
robbery in the night1  and a man kill   
him1 he is killed lawfully4 ,thus by the
 laws of all  known and civilized       
nations1 the person is judged innocent1 
who kills  another1 forcibly attempting 
or endangering his life2 a conspiring   
and  universal testimony1 which proves  
that in justifiable homicide1 there  is 
nothing repugnant to the law of nature4 
,,iv4#aa ,public war1 according to the  
law of nations1 is either ,,solemn1     
that is ,,formal1 or ,,less ,,solemn1   
that is ,,informal4 ,the name of lawful 

war is commonly given to what is here   
called formal1 in the same sense  in    
which a regular will is opposed to a    
codicil1 or a lawful marriage  to the   
cohabitation of slaves4 ,this opposition
 by no means implies  that it is not    
allowed to any man1 if he pleases1 to   
make a codicil1  or to slaves to cohabit
 in matrimony1 but only1 that1 by the   
civil  law1 ,,formal ,,wills and        
,,solemn ,,marriages1 were attended with
 peculiar  privileges and effects4      
,these observations were the more       
necessary2  because many1 from a        
misconception of the word just or       
lawful1 think  that all wars1 to which  
those epithets do not apply1 are        
condemned as  unjust and unlawful4 ,now 
to give a war the formality required by 
the  law of nations1 two things are     
necessary4 ,in the first place it must  
be made on both sides1 by the sovereign 
power of the state1 and in the  next    
place it must be accompanied with       
certain formalities4 ,both of  which are

 so essential that one is insufficient  
without the other4    ,now a public war1
 ,,less ,,solemn1 may be made without   
those formalities1  even against private
 persons1 and by any magistrate         
whatever4 ,and  indeed1 considering the 
thing without respect to the civil law1 
every  magistrate1 in case of           
resistance1 seems to have a right to    
take up  arms1 to maintain his authority
 in the execution of his office2 as     
well as to defend the people committed  
to his protection4 ,but as a  whole     
state is by war involved in danger1 it  
is an established law in  almost all    
nations that no war can be made but by  
the authority of the  sovereign in each 
state4 ,there is such a law as this in  
the last book  of ,plato ,,on ,,laws4   
,and by the ,roman law1 to make war1 or 
levy troops  without a commission from  
the ,prince was high treason4 ,according
 to the  ,cornelian law also1 enacted by
 ,lucius ,cornelius ,sylla1 to do so    
without  authority from the people      

amounted to the same crime4 ,in the code
 of  ,justinian there is a constitution1
 made by ,valentinian and ,valens1  that
 no one should bear arms without their  
knowledge and authority4  ,conformably  
to this rule1 ,st4 ,augustin says1 that 
as peace is most  agreeable to the      
natural state of man1 it is proper that 
,princes should  have the sole authority
 to devise and execute the operations of
 war4  ,yet this general rule1 like all 
others1 in its application must always  
be limited by equity and discretion4    
,in certain cases this authority may be 
communicated to others4 ,for it  is a   
point settled beyond all doubt that     
subordinate magistrates may1  by their  
officers1 reduce a few disobedient and  
tumultuous persons  to subjection1      
provided1 that to do it1 it requires not
 a force of  such enormous magnitude as 
might endanger the state4 ,again1 if the
  danger be so imminent as to allow of  
no time for an application to the       
sovereign executive power1 here too the 

necessity is admitted as an  exception  
to the general rule4 ,lucius ,pinarius  
the ,governor of ,enna1 a  ,sicilian    
garrison1 presuming upon this right1    
upon receiving certain  information that
 the inhabitants had formed a conspiracy
 to revolt to  the ,carthaginians1 put  
them all to the sword1 and by that means
 saved  the place4 ,franciscus ,victoria
 allows the inhabitants of a town to    
take  up arms1 even without such a case 
of necessity1 to redress their own      
wrongs1 which the ,prince neglects to   
avenge1 but such an opinion is  rejected
 by others4    ,v4 ,whether the         
circumstances1 under which subordinate  
magistrates are  authorised to use      
military force1 can properly be called  
public war or  not1 is a matter of      
dispute among legal writers1 some       
affirming and  others denying it4 ,if   
indeed we call no other public war1 but 
that  which is made by magisterial      
authority1 there is no doubt but that   
such suppressions of tumult are public  

wars1 and those who in such  cases      
resist the magistrate in the execution  
of his office1 incur the  guilt of      
rebellion against superiors4 ,but if    
public war is taken in the  higher sense
 of ,,formal war1 as it undoubtedly     
often is2 those are not  public wars2   
because to entitle them to the full     
rights of such1 the  declaration of the 
sovereign power and other requisites are
 wanting4  ,nor do the loss of property 
and the military executions1 to which   
the offenders are subject1 at all affect
 the question4#ab ,for those  casualties
 are not so peculiarly attached to      
formal war1 as to be  excluded from all 
other kinds4 ,for it may happen1 as in  
an extensive  empire for instance1 that 
persons in subordinate authority1 may1  
when  attacked1 or threatened with      
attack1 have powers granted to commence 
military operations4 ,in which case the 
war must be supposed to commence  by the
 authority of the sovereign power2 as a 
person is considered  to be the author  

of a measure which by virtue of his     
authority he  empowers another to       
perform4 ,the more doubtful point is1   
whether1 where  there is no such        
commission1 a conjecture of what is the 
will of the  sovereign power be         
sufficient4 ,this seems not admissible4 
,for it is  not sufficient to consider1 
what we suppose would be the            
,sovereign's  pleasure1 if he were      
consulted2 but what would be his actual 
will1 in  matters admitting of time for 
deliberation1 even though he were not   
formally consulted2 if a law was to be  
passed upon those matters4 ,for  though 
,,under ,,some ,,particular             
,,circumstances1 it may be necessary to 
waive consulting the will of the        
sovereign1 yet this would by no means   
authorise it as a ,,general ,,practice4 
,for the safety of the state would  be  
endangered1 if subordinate powers should
 usurp the right of making  war at their
 discretion4 ,it was not without reason1
 that ,cneus ,manlius  was accused by   

his ,lieutenants of having made war upon
 the ,galatians  without authority from 
the ,roman people4 ,for though the      
,galatians had  supplied ,antiochus with
 troops1 yet as peace had been made with
 him1 it  rested with the ,roman people1
 and not with ,manlius to determine in  
what  manner the ,galatians should be   
punished for assisting an enemy4 ,cato  
proposed that ,julius ,caesar should be 
delivered up to the ,germans for  having
 attacked them in violation of his      
promise1 a proposal proceeding  rather  
from the desire to be rid of a          
formidable rival1 than from any         
principle of justice4    ,the case was  
thus2 the ,germans had assisted the     
,gauls1 enemies of  the ,roman people1  
therefore they had no reason to complain
 of the  injury done to them1 if the war
 against the ,gauls1 in which they had  
made themselves a party concerned1 was  
just4 ,but ,caesar ought to have        
contented himself with driving the      
,germans out of ,gaul1 the province     

assigned him1 without pursuing them into
 their own country1 especially  as there
 was no farther danger to be apprehended
 from them2 unless he  had first        
consulted the ,roman people4 ,it was    
plain1 then1 the ,germans  had no right 
to demand the surrender of ,caesar's    
person1 though the  ,romans had a right 
to punish him for having exceeded his   
commission4 ,on  a similar occasion the 
,carthaginians answered the ,romans2 ,it
 is not  the subject of inquiry whether 
,hannibal has besieged ,saguntum1 by his
  own private or by public authority1   
but whether justly or unjustly4 ,for    
with respect to one of our own subjects 
it is our business to inquire  by what  
authority he has acted2 but the matter  
of discussion with you  is1 whether he  
has broken any treaty4 ,cicero defends  
the conduct of  ,octavius and ,decimus  
,brutus1 who had taken up arms against  
,antony4 ,but  though it was evident    
that ,antony deserved to be treated as  
an enemy1  yet they ought to have waited

 for the determination of the ,senate   
and  people of ,rome1 whether it were   
for the public interest not to take     
notice of his conduct or to punish it1  
to agree to terms of peace with  him1 or
 to have recourse to arms4 ,this would  
have been proper2 for no  one is obliged
 to exercise the right of punishing an  
enemy1 if it is  attended with probable 
danger4    ,but even if it had been     
judged expedient to declare ,antony an  
enemy1  the choice of the persons to    
conduct the war should have been left to
  the ,senate and people of ,rome4 ,thus
 when ,cassius demanded assistance of   
the ,rhodians1 according to treaty1 they
 answered they would send it1  if the   
senate thought proper4 ,this refutation 
of ,cicero's opinion will  serve1 along 
with many other instances to be met     
with2 as an admonition  not to be       
carried away by the opinions of the most
 celebrated writers1  particularly the  
most brilliant orators1 who often speak 
to suit the  circumstances of the       

moment4 ,but all political investigation
 requires  a cool and steady judgment1  
not to be biased by examples1 which may 
rather be excused than vindicated4      
,since then it has already been         
established that no war can lawfully be 
made but by the sovereign power of each 
state1 in respect to all the  questions 
connected with war1 it will be necessary
 to examine what that  sovereign power  
is1 and who are the persons that hold   
it4    ,,vi4 ,the moral power then of   
governing a state1 which is called by   
,thucydides the civil power1 is         
described as consisting of three parts  
which form the necessary substance of   
every state2 and those are the  right of
 making its own laws1 executing them in 
its own manner1 and  appointing its own 
magistrates4 ,aristotle1 in the fourth  
book of his  ,politics1 comprises the   
sovereignty of a state in the exercise  
of the  deliberative1 executive1 and    
judicial powers4 ,to the deliberative   
branch he assigns the right of deciding 

upon peace or war1 making or  annulling 
treaties1 and framing and passing new   
laws4 ,to these he  adds the power of   
inflicting death1 banishment1 and       
forfeiture1 and  of punishing also for  
public peculation4 ,in the exercise of  
judicial  power1 he includes not only   
the punishment of crimes and            
misdemeanors1  but the redress of civil 
injuries4#ac ,dionysius of              
,halicarnassus1  points out three       
distinguishing marks of sovereign power2
 and those  are1 the right of appointing
 magistrates1 the right of enacting and 
repealing laws1 and the right of making 
war and peace4 ,to which1 in  another   
part1 he adds the administration of     
justice1 the supreme  authority in      
matters of religion1 and the right of   
calling general  councils4    ,a true   
definition comprehends every possible   
branch of authority that  can grow out  
of the possession and exercise of       
sovereign power4 ,for  the ruler of     
every state must exercise his authority 

either in person1  or through the medium
 of others4 ,his own personal acts must 
be either  general or special4 ,he may  
be said to do ,,general acts in passing 
or  repealing laws1 respecting either   
temporal matters1 or spiritual          
concerns1 as far as the latter relate to
 the welfare of the state4 ,the         
knowledge of these principles is called 
by ,aristotle the masterpiece in  the   
science of government4    ,the          
particular acts of the ,sovereign are   
either directly of a public  nature1 or 
a private1 but even the latter bear     
reference to his public  capacity4 ,now 
the acts of the sovereign executive     
power of a directly  public kind are the
 making of peace and war and treaties1  
and the  imposition of taxes1 and other 
similar exercises of authority over the 
persons and property of its subjects1   
which constitute the sovereignty  of the
 state4 ,aristotle calls the knowledge  
of this practice political  and         
deliberative science4    ,the private   

acts of the sovereign are those1 in     
which by his authority1  disputes       
between individuals are decided1 as it  
is conducive to the  peace of society   
that these should be settled4 ,this is  
called by  ,aristotle the judicial      
power4 ,thus the acts of the sovereign  
are  done in his name by his magistrates
 or other officers1 among whom          
ambassadors are reckoned4 ,and in the   
exercise of all those rights  sovereign 
power consists4    ,,vii4 ,that power is
 called sovereign1 whose actions are not
 subject to  the controul of any other  
power1 so as to be annulled at the      
pleasure  of any other human will4 ,the 
term ,,any ,,other ,,human ,,will       
exempts the  sovereign himself from this
 restriction1 who may annul his own     
acts1  as may also his successor1 who   
enjoys the same right1 having the same  
power and no other4 ,we are to consider 
then what is the subject in  which this 
sovereign power exists4 ,now the subject
 is in one respect  common1 and in      

another proper1 as the body is the      
common subject of  sight1 the eye the   
proper1 so the common subject of        
sovereign power is  the state1 which has
 already been said to be a perfect      
society of men4    ,now those nations1  
who are in a state of subjugation to    
another power1  as the ,roman provinces 
were1 are excluded from this definition4
 ,for  those nations are not sovereign  
states of themselves1 in the present    
acceptation of the word2 but are        
subordinate members of a great  state1  
as slaves are members of a household4   
,again it happens that  many states1    
forming each an independent body1 may   
have one head4  ,for political are not  
like natural bodies1 to only one of     
which the  same head can belong4        
,whereas in the former1 one person can  
exercise  the function of the head to   
many distinct bodies4 ,as a certain     
proof  of which1 when the reigning house
 has become extinct1 the sovereign      
power returns to the hands of the       

nation4 ,so it may happen1 that many    
states may be connected together by the 
closest federal union1 which  ,strabo1  
in more places than one calls a system1 
and yet each retain the  condition of a 
perfect1 individual state1 which has    
been observed by  ,aristotle and others 
in different parts of their writings4   
,therefore  the common subject of       
sovereign power is the state1 taken in  
the sense  already explained4 ,the      
proper subject is one or more persons   
according  to the laws and customs of   
each nation4 ,this is called by ,galen  
in the  sixth book ,,de ,,placitis      
,,hippocrate ,,et ,,platonis1 the first 
power of the  state4    ,,viii4 ,and    
here is the proper place for refuting   
the opinion of those1  who maintain     
that1 everywhere and without exception1 
the sovereign  power is vested in the   
people1 so that they have a right to    
restrain  and punish kings for an abuse 
of their power4 ,however there is no man
  of sober wisdom1 who does not see the 

incalculable mischiefs1 which  such     
opinions have occasioned1 and may still 
occasion2 and upon the  following       
grounds they may be refuted4    ,from   
the ,jewish1 as well as the ,roman ,law1
 it appears that any one  might engage  
himself in private servitude to whom he 
pleased4 ,now if  an individual may do  
so1 why may not a whole people1 for the 
benefit  of better government and more  
certain protection1 completely transfer 
their sovereign rights to one or more   
persons1 without reserving any  portion 
to themselves8 ,neither can it be       
alleged that such a thing is  not to be 
presumed1 for the question is not1 what 
is to be presumed  in a doubtful case1  
but what may lawfully be done4 ,nor is  
it any  more to the purpose to object to
 the inconveniences1 which may1 and     
actually do arise from a people's thus  
surrendering their rights4 ,for  it is  
not in the power of man to devise any   
form of government free  from           
imperfections and dangers4 ,as a        

dramatic writer says1 you must  either  
take these advantages with those        
imperfections1 or resign your           
pretensions to both4    ,now as there   
are different ways of living1 some of a 
worse1 and some  of a better kind1 left 
to the choice of every individual2 so a 
nation1  under certain circumstances1   
,,when for instance1 the succession to  
the  throne is extinct1 or the throne   
has by any other means become vacant1   
may chuse what form of government she   
pleases4 ,nor is this right to be       
measured by the excellence of this or   
that form of government1 on which  there
 may be varieties of opinion1 but by the
 will of the people4    ,there may be   
many reasons indeed why a people may    
entirely relinquish  their rights1 and  
surrender them to another3 for instance1
 they may  have no other means of       
securing themselves from the danger of  
immediate  destruction1 or under the    
pressure of famine it may be the only   
way1 through which they can procure     

support4 ,for if the ,campanians1       
formerly1 when reduced by necessity     
surrendered themselves to the ,roman    
people in the following                 
terms3--,senators of ,rome1 we consign  
to your  dominion the people of         
,campania1 and the city of ,capua1 our  
lands1  our temples1 and all things both
 divine and human1 and if another       
people as ,appian relates1 offered to   
submit to the ,romans1 and were         
refused1 what is there to prevent any   
nation from submitting in the  same     
manner to one powerful sovereign8 ,it   
may also happen that a master  of a     
family1 having large possessions1 will  
suffer no one to reside  upon them on   
any other terms1 or an owner1 having    
many slaves1 may give  them their       
liberty upon condition of their doing   
certain services1 and  paying certain   
rents2 of which examples may be         
produced4 ,thus ,tacitus1  speaking of  
the ,german slaves1 says1 ,each has his 
own separate  habitation1 and his own   

household to govern4 ,the master        
considers him  as a tenant1 bound to pay
 a certain rent in corn1 cattle1 and    
wearing  apparel4 ,and this is the      
utmost extent of servitude4             
,aristotle1 in describing the           
requisites1 which fit men for servitude1
  says1 that those men1 whose powers are
 chiefly confined to the body1  and     
whose principal excellence consists in  
affording bodily service1  are naturally
 slaves1 because it is their interest to
 be so4 ,in the  same manner some       
nations are of such a disposition that  
they are more  calculated to obey than  
to govern1 which seems to have been the 
opinion  which the ,cappadocians held of
 themselves1 who when the ,romans       
offered  them a popular government1     
refused to accept it1 because the nation
  they said could not exist in safety   
without a king4 ,thus ,philostratus  in 
the life of ,apollonius1 says1 that it  
was foolish to offer liberty  to the    
,thracians1 the ,mysians1 and the       

,getae1 which they were not  capable of 
enjoying4 ,the example of nations1 who  
have for many ages  lived happily under 
a kingly government1 has induced many to
 give the  preference to that form4     
,livy says1 that the cities under       
,eumenes would  not have changed their  
condition for that of any free state    
whatsoever4  ,and sometimes a state is  
so situated1 that it seems impossible it
 can  preserve its peace and existence1 
without submitting to the absolute      
government of a single person1 which    
many wise men thought to be the  case   
with the ,roman ,republic in the time of
 ,augustus ,caesar4 ,from  these1 and   
causes like these it not only may1 but  
generally does  happen1 that men1 as    
,cicero observes in the second book of  
his offices1  willingly submit to the   
supreme authority of another4    ,now as
 property may be acquired by what has   
been already styled just  war1 by the   
same means the rights of sovereignty may
 be acquired4 ,nor  is the term         

sovereignty here meant to be applied to 
monarchy alone1  but to government by   
nobles1 from any share in which the     
people are  excluded4 ,for there never  
was any government so purely popular1 as
 not  to require the exclusion of the   
poor1 of strangers1 women1 and minors   
from the public councils4 ,some states  
have other nations under them1  no less 
dependent upon their will1 than subjects
 upon that of their  sovereign princes4 
,from whence arose that question1 ,are  
the ,collatine  people in their own     
power8 ,and the ,campanians1 when they  
submitted  to the ,romans1 are said to  
have passed under a foreign dominion4   
,in  the same manner ,acarnania and     
,amphilochia are said to have been under
  the dominion of the ,aetolians2       
,peraea and ,caunus under that of the   
,rhodians2 and ,pydna was ceded by      
,philip to the ,olynthians4 ,and those  
towns1 that had been under the          
,spartans1 when they were delivered from
  their dominion1 received the name of  

the free ,laconians4 ,the city of       
,cotyora is said by ,xenophon to have   
belonged to the people of ,sinope4      
,nice in ,italy1 according to ,strabo1  
was adjudged to the people of           
,marseilles2 and the island of          
,pithecusa to the ,neapolitans4 ,we find
 in  ,frontinus1 that the towns of      
,calati and ,caudium with their         
territories  were adjudged1 the one to  
the colony of ,capua1 and the other to  
that  of ,beneventum4 ,otho1 as ,tacitus
 relates1 gave the cities of the ,moors 
to the ,province of ,baetia4 ,none of   
these instances1 any more than the      
cessions of other conquered countries   
could be admitted1 if it were a         
received rule that the rights of        
sovereigns are under the controul and   
direction of subjects4    ,now it is    
plain both from sacred and profane      
history1 that there are  kings1 who are 
not subject to the controul of the      
people in their  collective body2 ,god  
addressing the people of ,israel1 says1 

if thou  shalt say1 ,i will place a king
 over me2 and to ,samuel ,shew them the 
manner of the king1 who shall reign over
 them4 ,hence the ,king is said  to be  
anointed over the people1 over the      
inheritance of the ,lord1 over  ,israel4
 ,solomon is styled ,king over all      
,israel4 ,thus ,david gives thanks  to  
,god1 for subduing the people under him4
 ,and ,christ says1 the ,kings  of the  
nations bear rule over them4 ,there is a
 well known passage in  ,horace1        
,powerful sovereigns reign over their   
own subjects1 and the  supreme being    
over sovereigns themselves4 ,seneca thus
 describes the  three forms of          
government1 ,sometimes the supreme power
 is lodged in  the people1 sometimes in 
a senate composed of the leading men of 
the  state1 sometimes this power of the 
people1 and dominion over the people    
themselves is vested in a single person4
 ,of the last description are  those1   
who1 as ,plutarch says1 exercise        
authority not according to the  laws1   

but over the laws4 ,and in ,herodotus1  
,otanes describes a monarch  as one     
whose acts are not subject to controul4 
,dion ,prusaeensis also  and ,pausanias 
define a monarchy in the same terms4    
,aristotle says there are some kings1   
who have the same right1 which the      
nation elsewhere possesses over persons 
and property4 ,thus when the  ,roman    
,princes began to exercise regal power1 
the people it was said  had transferred 
all their own personal sovereignty to   
them1 which gave  rise to the saying of 
,marcus ,antoninus the ,philosopher1    
that no one  but ,god alone can be judge
 of the ,prince4 ,dion4 ,l4 liii4       
speaking of  such a prince1 says1 he is 
perfectly master of his own actions1 to 
do  whatever he pleases1 and cannot be  
obliged to do any thing against his     
will4 ,such anciently was the power of  
the ,inachidae established at  ,argos in
 ,greece4 ,for in the ,greek ,tragedy of
 the ,suppliants1 ,aeschylus  has       
introduced the people thus addressing   

the ,king3 ,you are the  state1 you the 
people2 you the court from which there  
is no appeal1  you preside over the     
altars1 and regulate all affairs by your
 supreme  will4 ,king ,theseus himself  
in ,euripides speaks in very different  
terms of the ,athenian ,republic2 ,the  
city is not governed by one man1  but in
 a popular form1 by an annual succession
 of magistrates4 ,for  according to     
,plutarch's explanation1 ,theseus was   
the general in war1  and the guardian of
 the laws2 but in other respects nothing
 more  than a citizen4 ,so that they who
 are limited by popular controul are    
improperly called kings4 ,thus after the
 time of ,lycurgus1 and more            
particularly after the institution of   
the ,ephori1 the ,kings of the          
,lacedaemonians are said by ,polybius1  
,plutarch1 and ,cornelius ,nepos1  to   
have been ,kings more in name than in   
reality4 ,an example which was  followed
 by the rest of ,greece4 ,thus          
,pausanias says of the ,argives to  the 

,corinthians1 ,the ,argives from their  
love of equality have reduced  their    
kingly power very low2 so that they have
 left the posterity of  ,cisus nothing  
more than the shadow of ,kings4         
,aristotle denies such to  be proper    
forms of government1 because they       
constitute only a part of  an           
,aristocracy or ,democracy4    ,examples
 also may be found of nations1 who have 
not been under a  perpetual regal form1 
but only for a time under a government  
exempt  from popular controul4 ,such was
 the power of the ,amimonians among  the
 ,cnidians1 and of the ,dictators in the
 early periods of the ,roman  history1  
when there was no appeal to the people1 
from whence ,livy says1  the will of the
 ,dictator was observed as a law4       
,indeed they found this  submission the 
only remedy against imminent danger1 and
 in the words of  ,cicero1 the          
,dictatorship possessed all the strength
 of royal power4    ,it will not be     
difficult to refute the arguments       

brought in favour of  the contrary      
opinion4 ,for in the first place the    
assertion that the  constituent always  
retains a controul over the sovereign   
power1 which  he has contributed to     
establish1 is only true in those cases  
where  the continuance and existence of 
that power depends upon the will and    
pleasure of the constituent3 but not in 
cases where the power1 though  it might 
derive its origin from that constituent1
 becomes a necessary  and fundamental   
part of the established law4 ,of this   
nature is that  authority to which a    
woman submits when she gives herself to 
a husband4  ,valentinian the ,emperor1  
when the soldiers who had raised him to 
the  throne1 made a demand of which he  
did not approve1 replied2 ,soldiers1    
your election of me for your emperor was
 your own voluntary choice2 but  since  
you have elected me1 it depends upon my 
pleasure to grant your  request4 ,it    
becomes you to obey as subjects1 and me 
to consider what is  proper to be done4 

,nor is the assumption true1 that all   
kings are made by the people1  as may be
 plainly seen from the instances adduced
 above1 of an owner  admitting strangers
 to reside upon his demesnes on         
condition of their  obedience1 and of   
nations submitting by right of conquest4
 ,another  argument is derived from a   
saying of the ,philosophers1 that all   
power is conferred for the benefit of   
the governed and not of the  governing  
party4 ,hence from the nobleness of the 
end1 it is supposed  to follow1 that    
subjects have a superiority over the    
sovereign4 ,but it  is not universally  
true1 that all power is conferred for   
the benefit  of the party governed4 ,for
 some powers are conferred for the sake 
of the governor1 as the right of a      
master over a slave1 in which  the      
advantage of the latter is only a       
contingent and adventitious             
circumstance4 ,in the same manner the   
gain of a ,physician is to reward  him  
for his labour2 and not merely to       

promote the good of his art4  ,there are
 other kinds of authority established   
for the benefit of  both parties1 as for
 instance1 the authority of a husband   
over his  wife4 ,certain governments    
also1 as those which are gained by right
  of conquest1 may be established for   
the benefit of the sovereign2  and yet  
convey no idea of tyranny1 a word which 
in its original  signification1 implied 
nothing of arbitrary power or injustice1
 but  only the government or authority  
of a ,prince4 ,again1 some governments  
may be formed for the advantage both of 
subjects and sovereign1 as  when a      
people1 unable to defend themselves1 put
 themselves under  the protection and   
dominion of any powerful king4 ,yet it  
is not to  be denied1 but that in most  
governments the good of the subject is  
the chief object which is regarded3 and 
that what ,cicero has said  after       
,herodotus1 and ,herodotus after        
,hesiod1 is true1 that ,kings were      
appointed in order that men might enjoy 

complete justice4    ,now this admission
 by no means goes to establish the      
inference that  kings are amenable to   
the people4 ,for though guardianships   
were  invented for the benefit of wards1
 yet the guardian has a right to        
authority over the ward4 ,nor1 though a 
guardian may for mismanagement  be      
removed from his trust1 does it follow  
that a king may for the same  reason be 
deposed4 ,the cases are quite different1
 the guardian has  a superior to judge  
him2 but in governments1 as there must  
be some  dernier resort1 it must be     
vested either in an individual1 or in   
some  public body1 whose misconduct1 as 
there is no superior tribunal before    
which they can be called1 ,god declares 
that he himself will judge4 ,he  either 
punishes their offences1 should he deem 
it necessary2 or permits  them for the  
chastisement of his people4    ,this is 
well expressed by ,tacitus3 he says1 you
 should bear with  the rapacity or      
luxury of rulers1 as you would bear with

 drought1  or excessive rains1 or any   
other calamities of nature4 ,for as long
  as men exist there will be faults and 
imperfections2 but these are  not of    
uninterrupted continuance1 and they are 
often repaired by  the succession of    
better times4 ,and ,marcus ,aurelius    
speaking of  subordinate magistrates1   
said1 that they were under the controul 
of  the sovereign3 but that the         
sovereign was amenable to ,god4 ,there  
is a remarkable passage in ,gregory of  
,tours1 where that ,bishop thus         
addresses the ,king of ,france1 ,if any 
of us1 ,sir1 should transgress the      
bounds of justice1 he may be punished by
 you4 ,but if you exceed them1  who can 
call you to account8 ,for when we       
address you1 you may hear us  if you    
please2 but if you will not1 who can    
judge you1 except him1 who  has declared
 himself to be righteousness8 ,among the
 maxims of the  ,essenes1 ,porphyry     
cites a passage1 that no one can reign  
without the  special appointment of     

divine providence4 ,irenaeus has        
expressed this  well1 ,kings are        
appointed by him at whose command men   
are created2 and  their appointment is  
suited to the condition of those1 whom  
they are  called to govern4 ,there is   
the same thought in the ,constitutions  
of  ,clement1 ,you shall fear the ,king1
 for he is of the ,lord's appointment4  
,nor is it an objection to what has been
 said1 that some nations have  been     
punished for the offences of their      
kings2 for this does not  happen1       
because they forbear to restrain their  
kings1 but because they  seem to give1  
at least a tacit consent to their vices1
 or perhaps1  without respect to this1  
,god may use that sovereign power which 
he has  over the life and death of every
 man to inflict a punishment upon the   
king by depriving him of his subjects4  
,,ix4 ,there are some who frame an      
imaginary kind of mutual subjection1  by
 which the people are bound to obey the 
king1 as long as he governs  well2 but  

his government is subject to their      
inspection and controul4  ,if they were 
to say that his duty to the sovereign   
does not oblige any  one to do an act   
manifestly unjust and repugnant to the  
law of ,god2  they would say nothing but
 what is true and universally admitted1 
but  this by no means includes a right  
to any controul over the ,prince's      
conduct in his lawful government4 ,but  
if any people had the opportunity  of   
dividing the sovereign power with the   
king1 the privileges of the  one1 and   
the prerogatives of the other ought to  
be defined by certain  bounds1 which    
might easily be known1 according to the 
difference of  places1 persons1 or      
circumstances4    ,now the supposed good
 or evil of any act1 especially in      
political  matters which admit of great 
variety of opinions and much discussion1
  is not a sufficient mark to ascertain 
these bounds4 ,from whence the  greatest
 confusion must follow1 if under        
pretence of promoting good  or averting 

evil measures1 the people might struggle
 for the ,prince's  jurisdiction3 a     
turbulent state of affairs1 which no    
sober minded  people ever wished to     
experience4    ,x4 ,after refuting false
 opinions1 it remains to apply some     
cautions1  which may point out the way  
to ascertain correctly the person to    
whom  sovereign power1 in every state1  
of right belongs4 ,the first caution    
necessary is to avoid being deceived by 
ambiguous terms1 or appearances  foreign
 to the real subject4 ,for instance1    
among the ,latins1 although  the terms  
,,principality and ,,kingdom are        
generally opposed to each  other1 when  
,caesar says1 that the father of        
,vercingetorix held the  principality of
 ,gaul1 and was put to death for aiming 
at sovereign  power2 and when ,piso1 in 
,tacitus calls ,germanicus the son of a 
,roman  ,prince1 not of a ,parthian     
,king2 and when ,suetonius says1 that   
,caligula  was on the point of          
converting the power of a prince into   

that of a  king2 and ,velleius asserts  
that ,maroboduus not contented with the 
authority of a prince over voluntary    
adherents and dependents1 was  grasping 
in his mind at regal power2 yet we find 
these terms though  in reality very     
distinct were often confounded4 ,for the
 ,lacedaemonian  chiefs1 the descendants
 of ,hercules1 though subject to the    
controul  of the ,ephori1 were          
nevertheless called kings3 and ,tacitus 
says1  that among the ancient ,germans  
there were kings1 who governed more  by 
the influence of persuasion than by the 
authority of power4 ,livy  too1 speaking
 of king ,evander1 describes him as     
reigning more by  personal authority    
than by his regal power2 and ,aristotle1
 ,polybius1  and ,diodorus give the     
names of ,kings to the ,suffetes or     
,judges of  the ,carthaginians4 ,in the 
same manner ,solinus also calls ,hanno  
,king  of the ,carthaginians4 ,strabo   
speaks of ,scepsis in ,troas1 that      
having  incorporated the ,milesians into

 the state1 it formed itself into a     
,democracy1 leaving the descendants of  
the ancient kings the title1 and        
something of the dignity of kings4      
,on the other hand1 the ,roman emperors1
 after they had exercised openly1  and  
without any disguise1 a most absolute   
monarchical power1 were  notwithstanding
 called ,princes4 ,and in some popular  
states the chief  magistrates are graced
 with ensigns of royalty4    ,again the 
states general1 that is the convention  
of those who represent  the people1     
divided into classes according to       
,gunther1 consist of three  orders1     
which are the ,prelates1 the ,nobles1   
and ,deputies of large  towns4 ,in some 
places1 they serve as a greater council 
to the king1 to  communicate to him the 
complaints of his people1 which might   
otherwise  be kept from his ears2       
leaving him at the same time full       
liberty to  exercise his own discretion 
upon the matters so communicated4 ,but  
in  other places they form a body with  

power to inquire into the prince's      
measures1 and to make laws4    ,many    
think that in order to know whether a   
prince be sovereign or not1  it is      
proper to inquire whether his title to  
the crown is by election  or            
inheritance4 ,for they maintain that    
hereditary monarchies alone  are        
sovereign4 ,but this cannot be received 
as a general criterion4  ,for           
sovereignty consists not merely in the  
,,title to the throne1 which  only      
implies that the successor has a right  
to all the privileges and  prerogatives 
that his ancestors enjoyed1 but it by no
 means affects the  nature or extent of 
his powers4 ,for right of election      
conveys all the  powers1 which the first
 election or appointment conferred4     
,among the  ,lacedaemonians the crown   
was hereditary even after the           
institution of  the ,ephori4 ,and       
,aristotle describing the chief power of
 such a state1  says1 ,of these         
kingdoms1 some are hereditary1 and      

others elective4  ,in the heroic times  
most of the kingdoms in ,greece were of 
this  description1 as we are informed by
 ,thucydides4 ,the ,roman empire1 on the
  contrary1 even after the power of the 
,senate and people was abolished1  was  
given or confirmed by election4    ,,xi4
 ,another caution is necessary4 ,for to 
inquire into the matter of a  right is  
not the same thing as to examine the    
nature of its tenure4 ,a  distinction   
which takes place not only in corporeal 
but in incorporeal  possessions4 ,for a 
right of passage or carriage through a  
ground is  no less a right than that    
which entitles a man to the possession  
of  the land itself4 ,now some hold     
these privileges by a full right of     
property1 some by an usufructuary1 and  
others by a temporary right4  ,thus the 
,roman ,dictator had sovereign power by 
a temporary right4 ,in  the same manner 
kings1 both those who are the first of  
their line  elected to the throne1 and  
those who succeed them in the lawful    

order1  enjoy an usufructuary right1 or 
inalienable right4 ,but some sovereigns 
hold their power by a plenary right of  
property2 when for instance it  comes   
into their possession by the right of   
lawful conquest1 or when  a people1 to  
avoid greater evils1 make an unqualified
 surrender of  themselves and their     
rights into their hands4    ,the opinion
 of those can never be assented to1 who 
say that the power  of the ,dictator was
 not sovereign1 because it was not      
permanent4 ,for in  the moral world the 
nature of things is known from their    
operations4  ,the powers attended with  
equal effects are entitled to equal     
names4  ,now the ,dictator for the time 
being performed all acts with the same  
authority as the most absolute          
sovereign2 nor could any other power    
annul his acts4 ,the permanence         
therefore of uncertainty alters not the 
nature of a right1 although it would    
undoubtedly abridge its dignity1  and   
diminish its splendour4#ad              

,,book ,,ii4          ,,chapter ,i4     
,,defence ,,of ,,person ,,and           
,,property4      ,causes of             
,war--,defence of person and            
property--,what are called              
justifiable causes of war--,justifiable 
causes of ,war are      ,defence1       
recovery of one's property or debt1 or  
the punishment      of offences         
committed--,war for defence of life1    
justifiable1 and      lawful--,this kind
 of war lawful against an aggressor     
only--,the      danger must be present  
and real1 not an imaginary              
danger--,lawful      to kill any one    
attempting to maim one's person1 or     
violate one's      chastity--,occasions 
where this right may be lawfully        
waved--,this      right to be waved     
particularly with respect to the person 
of the      ,sovereign1 which is sacred 
and inviolable--,homicide in defence of 
one's property allowed by the law of    
nature--,how far homicide is            
permitted by the law of                 

,moses--,self-defence in public         
war--,not      lawful to attack any     
power solely on account of its          
increasing      greatness--,the hostile 
measures of an aggressor1 not to be     
justified on the plea of self-defence4  
,i4 ,the causes of war by which are     
meant the justifiable causes1 are  now  
to be considered4 ,for in some cases    
motives of interest operate  distinctly 
from motives of justice4 ,polybius      
accurately distinguishes  these motives 
from each other1 and from the beginning 
of the war1 or  that which gave occasion
 to the first acts of hostility2 as was 
the  case when ,ascanius wounded the    
stag1 which gave rise to the war between
  ,turnus and ,aeneas4 ,but though there
 is an actual distinction between  the  
justifiable causes1 the pretexts1 and   
the beginning of war2 yet  the terms    
used to express them are often          
confounded4 ,for what we call           
justifiable causes1 ,livy1 in the speech
 which he has put into the mouth  of the

 ,rhodians1 calls beginnings4 ,the      
,rhodian deputies said1 ,you  ,romans   
profess to believe that your wars are   
successful1 because they  are just2 nor 
do you boast so much of their victorious
 issue1 as of  the just principles1 upon
 which you make them4 ,in which sense   
,aelian  styles them   archas polemn and
 ,diodorus ,siculus1  in speaking of the
 war of the ,lacedaemonians against the 
,eleans gives  them the name of         
prophaseis and  archas4    ,the         
principal drift of our argument rests   
upon these justifiable  causes1 to which
 the sentiment of ,coriolanus in        
,dionysius of  ,halicarnassus1          
particularly applies1 he says1 in the   
first place1 ,i  beseech you to consider
 how you may find pious and just        
pretexts for  the war4 ,and ,demosthenes
 in his second ,olynthiac1 makes a      
similar  observation1 ,i think1 says he1
 that as in a ship1 or house1 or any    
other fabric1 the lowest parts ought to 
be the strongest2 so in all  political  

measures the motives and pretexts ought 
to be laid deeply  in the principles of 
truth and justice4 ,the following       
language of  ,dion ,cassius is no less  
applicable to the question4 ,justice    
must be  made the principal ground of   
our actions4 ,for with such support     
there  is the best hope of success to   
our arms4 ,but without that1 any point  
which may be gained for the moment has  
no firm ground to rest upon4  ,to which 
may be added1 the words of ,cicero1 who 
maintains those wars  to be unjust1     
which are made without sufficient cause4
 ,and in another  place1 he reproves    
,crassus for having intended to pass the
 ,euphrates1  when there was no cause of
 war4 ,which is no less true of public  
than of  private wars4 ,hence come the  
complaints of ,seneca1 ,why do we       
restrain  homicide1 and the murder of   
individuals1 but glory in the crime of  
slaughter1 which destroys whole nations8
 ,avarice and cruelty know not  any     
bounds4 ,by decrees of the ,senate1 and 

of the people cruel acts are            
authorized1 and measures1 which are     
pursued by order of the state1 are      
forbidden to individuals4 ,wars indeed  
undertaken by public authority  are     
attended with certain effects of right1 
and have the sanction of  opinion in    
their favour4 ,but they are not the less
 criminal1 when made  without just      
cause4 ,for which reason ,alexander was 
not improperly  styled a robber by the  
,scythian ambassadors1 as may be seen in
 ,quintus  ,curtius4 ,seneca and ,lucan 
give him the same appellation2 the      
,indian  sages call him a madman2 and a 
pirate once presumed to rank him with   
his own class4 ,justin speaks of ,philip
 in the same terms1 who1 says  he1 in   
deciding a dispute between two rival    
kings1 stripped both  of their dominions
 with all the treachery and violence of 
a robber4  ,augustin has a pertinent    
remark on this subject4 ,he says1 what  
are  unjustly acquired dominions1 but   
the spoils of robbery8 ,in the same     

strain1 ,lactantius says1 ,men1         
captivated with the appearances of vain 
glory1 give the names of virtues to     
their crimes4 ,injury1 or the           
prevention of injury forms the only     
justifiable cause of war4 ,and1 in  the 
language of the same ,augustin1 all the 
evil consequences of war  are to be laid
 at the door of the aggressor4 ,thus the
 ,roman ,herald in  a declaration of war
 makes a solemn appeal against the      
aggressor1 as  having violated the laws 
of nations1 and refused proper          
satisfaction4    ,,ii4 ,the grounds of  
war are as numerous as those of judicial
 actions4  ,for where the power of law  
ceases1 there war begins4 ,now there are
  methods in law to prevent intended    
injuries1 as well as actions for  those 
actually committed4 ,for ,,civil        
,,injuries various methods of  redress1 
or prevention are appointed by the law2 
and by the same  power securities are   
provided to prevent the commission of   
crimes and  misdemeanors4 ,in civil     

cases1 the party aggrieved may recover  
damages  for the injuries sustained2 and
 in crimes1 which are offences against  
the public1 the aggressor must submit to
 actual punishment4 ,plato1 in  his     
ninth book on laws1 very properly makes 
the same distinction1 as  ,homer had    
done before him4    ,now reparation or  
indemnity relates to what either does or
 did belong  to us2 which gives rise to 
real and personal actions4 ,these       
ascertain  our right to the damages1    
which are our due1 either from an       
agreement1  or from an injury received4 
,a right which is termed in law a right 
by  contract1 or injury4 ,crimes1 which 
are offences against society1 are       
prosecuted by indictment1 that is by an 
accusation in the name of the           
sovereign4    ,the justifiable causes   
generally assigned for war are three1   
defence1  indemnity1 and punishment1 all
 which are comprised in the declaration 
of ,camillus against the ,gauls1        
enumerating all things1 which it is     

right to defend1 to recover1 and the    
encroachment on which it is right  to   
punish4    ,there is an omission in this
 enumeration1 unless the word recover be
  taken in its most extensive sense4    
,for recovering by war what we have     
lost1 includes indemnity for the past1  
as well as the prosecution of  our claim
 to a debt4 ,plato has not omitted to   
notice this distinction1  for he has    
said1 that wars are made to punish not  
only oppression or  robbery1 but also   
fraud and deception4 ,with whom ,seneca 
agrees2 for  to command payment of what 
you owe1 he calls1 an equitable         
sentence1  stamped with the authority of
 the law of nations4 ,indeed the form   
which was prescribed for the ,roman     
heralds to use in declarations  of war1 
bears exactly the same import4 ,for     
therein the aggressor is  charged with  
having neither given1 paid1 nor done    
what was due4 ,sallust  in one of his   
fragments1 has made a ,tribune1 in his  
harangue to the  people1 say1 ,as a     

final settlement of all discussions1 ,i 
demand  restitution according to the law
 of nations4    ,st4 ,augustin1 in      
defining those to be just wars1 which   
are made to  avenge injuries has taken  
the word avenge in a general sense of   
removing and preventing1 as well as     
punishing aggressions4 ,this appears  to
 be his meaning from the following      
sentence of the passage1 in which  he   
does not enumerate the particular acts1 
which amount to injury1  but adds1 by   
way of illustration1 that the state or  
nation1 which  has neglected to punish  
the aggressions of its own subjects1 or 
to  make reparation for the losses      
occasioned by those aggressions1 is  a  
proper object of hostility and attack4  
,prompted by this natural  knowledge of 
right and wrong1 the ,indian ,king1 as  
we are informed by  ,diodorus1 accused  
,semiramis of having commenced war      
against him without  having received any
 injury4 ,thus the ,romans expostulated 
with the  ,senones1 that they ought not 

to attack a people who had given them no
  provocation4 ,aristotle in the second 
book and second chapter of his          
,analytics1 says1 war generally is made 
upon those who have first done  an      
injury4 ,quintus ,curtius describes the 
,abian ,scythians1 as the best          
acquainted with the principles of       
justice of any of the ,barbarians4 ,for 
they declined having recourse to arms1  
unless provoked by aggression4  ,a just 
cause then of war is an injury1 which   
though not actually  committed1         
threatens our persons or property with  
danger4    ,,iii4 ,it has already been  
proved that when our lives are          
threatened with  immediate danger1 it is
 lawful to kill the aggressor1 if the   
danger  cannot otherwise be avoided3 an 
instance1 as it has been shewn1 on      
which the justice of private war rests4 
,we must observe that this kind  of     
defence derives its origin from the     
principle of self-preservation1  which  
nature has given to every living        

creature1 and not from the  injustice or
 misconduct of the aggressor4 ,wherefore
 though he may be  clear of guilt1 as   
for instance a soldier in actual        
service1 mistaking  my person for that  
of another1 or a madman in his frenzy1  
or a man  walking in his sleep1 none of 
these cases deprive me of the right of  
self-defence against those persons4 ,for
 ,i am not bound to submit to the       
danger or mischief intended1 any more   
than to expose myself to the  attacks of
 a wild beast4    ,,iv4 ,it admits of   
some doubt1 whether those1 who          
unintentionally  obstruct our defence1  
or escape1 which are necessary to our   
preservation1 may be lawfully maimed or 
killed4 ,there are some1 even           
,theologians1 who think they may4 ,and1 
certainly if we look to the law  of     
nature alone1 according to its          
principles1 our own preservation  should
 have much more weight with us1 than the
 welfare of society4 ,but  the law of   
charity1 especially the evangelical law1

 which has put our  neighbour upon a    
level with ourselves1 does not permit   
it4    ,thomas ,aquinas1 if taken in a  
right sense1 has justly observed1 that  
in  actual self-defence no man can be   
said to be purposely killed4 ,indeed1   
it may some times happen that there is  
no other way for a person to  save      
himself1 than by designedly doing an    
act1 by which the death of  an aggressor
 must inevitably ensue4 ,yet here the   
death of any one was  not the primary   
object intended1 but employed as the    
only means of  security1 which the      
moment supplied4 ,still it is better for
 the party  assaulted1 if he can safely 
do it1 to repel or disable the aggressor
  than to shed his blood4    ,v4 ,the   
danger must be immediate1 which is one  
necessary point4 ,though  it must be    
confessed1 that when an assailant seizes
 any weapon with an  apparent intention 
to kill me ,i have a right to anticipate
 and prevent  the danger4 ,for in the   
moral as well as the natural system of  

things1  there is no point without some 
breadth4 ,but they are themselves much  
mistaken1 and mislead others1 who       
maintain that any degree of fear  ought 
to be a ground for killing another1 to  
prevent his ,,supposed  intention4 ,it  
is a very just observation made by      
,cicero in his first  book of ,offices1 
that many wrongs proceed from fear2 as  
when the  person1 who intends to hurt   
another1 apprehends some danger to      
himself  unless he took that method4    
,clearchus1 in ,xenophon1 says1 ,i have 
known  some men1 who partly through     
misrepresentation1 and partly through   
suspicion1 dreading one another1 in     
order to prevent the supposed           
intentions of their adversaries1 have   
committed the most enormous  cruelties  
against those who neither designed1 nor 
wished them any harm4    ,cato in his   
speech for the ,rhodians1 says1 ,are we 
to prevent them by  doing first1 what we
 say they intended to do to us8 ,on this
 subject  there is a remarkable passage 

in ,aulus ,gellius1 ,when a ,gladiator  
prepares to enter the lists for combat1 
such is his lot that he must  either    
kill his adversary1 or be killed        
himself4 ,but the life of man is  not   
circumscribed by the hard terms of such 
an over-ruling necessity1  as to oblige 
him to do an injury to prevent him from 
receiving one4  ,quintilian has quoted a
 passage from ,cicero1 wherein the      
orator asks1  ,whoever made such a      
decision1 or to whom could such a point 
be yielded  without the most imminent   
danger1 that you have a right to kill   
the  person1 by whom you say1 you fear  
that you shall afterwards be killed     
yourself8 ,to which this passage of     
,euripides1 may be applied1 ,if your    
husband1 as you say1 intended to have   
killed you1 you ought to have  waited1  
till he actually did make the attempt4  
,conformably to which  ,thucydides1 in  
the first book of his history1 has      
expressed himself in  the following     
terms1 ,the issue of war is uncertain1  

nor ought we to  be so far transported  
by our fears1 as to engage in immediate 
and open  hostilities4 ,the same writer 
too in his luminous description of the  
dangerous factions1 that had arisen in  
the ,grecian states1 condemns the       
approbation bestowed on the person1 that
 injured or destroyed another  from whom
 he himself apprehended injury or       
destruction4    ,livy says1 ,men1 to    
guard against their alarms1 make        
themselves objects  of terror2 averting 
the danger from their own heads1 by     
imposing upon  others the necessity of  
either doing or suffering the evil which
 they  themselves fear4 ,vibius asked a 
person1 that appeared armed in the      
forum1 ,who gave you permission to shew 
your fear in this manner8 ,a  question  
not inapplicable to the present subject1
 and much commended  by ,quintilian4    
,livia also in ,dion says1 that great   
infamy redounds to  those1 who by       
anticipation perpetrate the criminal    
act1 which they fear4    ,now if any one

 intend no immediate violence1 but is   
found to have  formed a conspiracy to   
destroy me by assassination1 or poison1 
or by  false accusation1 perjury1 or    
suborned witnesses1 ,i have no right to 
kill him4 ,for my knowledge of the      
danger may prevent it4 ,or even if  it  
were evident that ,i could not avoid the
 danger without killing  him2 this would
 not establish my right to do so4 ,for  
there is every  presumption that my     
knowing it will lead me to apply for the
 legal  remedies of prevention4    ,,vi4
 and ,,vii4 ,the next thing to be       
considered is1 what must be said upon   
the mutilation of a limb4 ,now1 as the  
loss of a limb1 especially that  of a   
principal limb in the body1 is a        
grievous detriment1 and nearly  equal to
 the loss of life1 to which may be added
 the probability of  death ensuing from 
such a calamity2 the lawfulness of      
killing any one1  who makes such an     
attempt1 if the danger cannot otherwise 
be avoided1  scarce admits of a doubt4  

,neither is there any more difficulty in
  allowing the same right for the       
personal defence of chastity1 the       
preservation of which1 both in the      
common estimation of men1 and by  the   
divine law1 is deemed of equal value    
with life itself4 ,we have an  example  
of this in ,cicero1 ,quintilian1 and    
,plutarch1 in the person  of one of     
,marius's tribunes1 who was killed by a 
soldier4 ,among the  actions of women1  
who have defended themselves1           
,heliodorus records that  of ,heraclea1 
which he calls a just defence of her    
injured honour4    ,,viii4 ,though some1
 as it has been already said1 admit the 
lawfulness of  killing the person1 who  
attempts with open violence to destroy  
one's  life1 yet they deem it more      
commendable to spare the life of        
another1  even at the hazard of one's   
own4 ,yet to persons1 in whose          
preservation  the public interest is    
involved1 they will grant an exemption  
from  this rule of forbearance4 ,indeed 

it seems unsafe to impose upon ,,any1   
whose lives are of importance to others1
 a rule of forebearance so  contrary to 
all the principles of all law4 ,this    
exemption therefore  must be allowed to 
all vested with any public office1 which
 makes them  responsible for the safety 
of others2 as the generals who conduct  
armies1 or the rulers of the state1 and 
many others in similar  situations2 to  
whom may be applied the lines of        
,lucan--,when the lives  and safety of  
so many nations depend upon yours1 and  
so great a portion  of the world has    
chosen you for its head2 it is cruelty  
to expose  yourself wilfully to death4  
,,ix4 ,on the other hand it may happen1 
that the aggressor may be one  whose    
person is rendered sacred and inviolable
 by all divine1 human1  and natural     
laws2 which is the case with respect to 
the person of  the ,sovereign4 ,for the 
law of nature regards not only the      
principles  of ,,strict ,,justice1 but  
comprises other virtues also1 as        

temperance1  fortitude1 and discretion1 
making the observance of them in certain
  cases1 binding as well as honourable4 
,to observe these we are bound  also by 
the law of charity4    ,nor is the truth
 of this argument at all weakened by    
what ,vasquez  has advanced1 who        
maintains that the ,sovereign who       
attempts the life  of an individual     
loses1 in reality1 the character of     
,sovereign3 a  doctrine fraught with    
equal absurdity and danger4 ,for        
sovereignty  cannot any more than       
property be forfeited by any particular 
act of  delinquency2 unless it has been 
previously and expressly so enacted by  
the fundamental laws of the state4 ,for 
such a rule of forfeiture1 which  would 
be productive of universal anarchy and  
confusion1 never has been1  nor ever    
will be established among any civilized 
people4 ,for the maxim1  that all       
government is framed for the benefit of 
the subject and not  of the ,sovereign1 
which ,vasquez and many other writers   

lay down as a  fundamental law1 though  
it may be generally true in theory1 is  
by no  means applicable to the question4
 ,for a thing loses not its existence1  
by losing some part of its utility4 ,nor
 is there sufficient consistency  in his
 observation1 that every individual     
desires the safety of the  commonwealth 
on his own account1 and therefore every 
one ought to  prefer his own safety to  
that of the whole state4 ,for we wish   
for the  public welfare not on our own  
account alone1 but also for the sake of 
others4    ,the opinion of those who    
think that friendship arises from       
necessity  alone1 is rejected as false1 
by the more sound ,philosophers2 as we  
feel  a spontaneous and natural         
inclination towards friendly            
intercourse4  ,charity indeed often     
persuades1 and in some instances        
commands us to  prefer the good of many 
to our own single advantage4 ,to which  
the  following passage from ,seneca is  
very applicable4 ,it is not surprising  

that princes1 and kings1 or whatever    
name the guardians of the public        
welfare may bear1 should be loved with a
 veneration and affection1 far  beyond  
those of private friendship4 ,for all   
men of sober judgment1 and  enlarged    
information deem the public interest of 
higher moment than  their own4 ,their   
attachment therefore must be warmest to 
the person on  whom the well being and  
prosperity of the state depends4 ,and to
 the  same effect1 ,st4 ,ambrose in his 
third book of ,offices1 says1 every  man
 feels a greater delight in averting    
public than private danger4  ,seneca1   
the writer already quoted1 produces two 
instances1 the one of  ,callistratus at 
,athens1 and the other of ,rutilius at  
,rome1 who refused  to be restored from 
banishment thinking it better for two   
individuals  to suffer hardship1 than   
for the public to be plunged into       
calamities4    ,,xi4#ae ,the next object
 to be considered1 relates to injuries  
affecting  our property4 ,in strict     

justice1 it cannot be denied that we    
have a  right to kill a robber1 if such 
a step is inevitably necessary to the   
preservation of our property4 ,for the  
difference between the value of  life   
and property is overbalanced by the     
horror which a robber excites1  and by  
the favourable inclination felt by all  
men towards the injured  and innocent4  
,from whence it follows1 that regarding 
that right alone1  a robber may be      
wounded or killed in his flight with the
 property1 if  it cannot otherwise be   
recovered4 ,demosthenes in his speech   
against  ,aristocrates1 exclaims1 ,by   
all that is sacred1 is it not a dreadful
  and open violation of law1 not only of
 written law1 but of that law  which is 
the unwritten rule of all men1 to be    
debarred from the right  of using force 
against the robber as well as against   
the enemy2 who  is plundering your      
property8 ,nor is it forbidden by the   
precepts  of charity1 apart from all    
consideration of divine and human law1  

unless where the property is of little  
value1 and beneath notice2 an           
exception1 which some writers have very 
properly added4    ,,xii4 ,the sense of 
the ,jewish law on this point is now to 
be considered4  ,the old law of ,solon1 
to which ,demosthenes1 in his speech    
against  ,timocrates1 appeals1 agrees   
with it4 ,from hence the substance of   
the ,,twelve ,,tables1 and ,plato's     
maxim in his ninth book of laws were    
taken4 ,for they all agree in making a  
distinction between a thief who  steals 
by day1 and the robber1 who commits the 
act by night2 though  they differ about 
the ,,reason of this distinction4 ,some 
think this  distinction arises from the 
difficulty of discerning by night1      
whether  an aggressor comes with an     
intent to murder or steal1 and therefore
  he ought to be treated as an assassin4
 ,others think the distinction  is made1
 because as it is difficult to know the 
person of the thief1  there is less     
probability of recovering the goods4 ,in

 neither case  do the framers of laws   
seem to have considered the question in 
its  proper light4 ,their evident       
intention is to prohibit the killing of 
any one1 merely on account of our       
property2 which would happen1 for       
instance1 by killing a thief in his     
flight in order to recover the  goods he
 had stolen4 ,but if our own lives are  
endangered1 then we are  allowed to     
avert the danger1 even at the hazard of 
another's life4  ,nor is our having run 
into the danger any objection2 provided 
it was  done to preserve or to recover  
our goods1 or to take the thief4 ,for   
no imputation of guilt can attach to us 
in any of these cases1 while  we are    
employed in doing a lawful act1 nor can 
it be said that we are  doing wrong to  
another by exercising our own right4    
,the difference therefore made between a
 thief in the night and a thief  in the 
day1 arises from the difficulty of      
procuring sufficient evidence  of the   
fact4 ,so that if a thief is found      

killed1 the person who says1  that he   
was found by him with a destructive     
weapon1 and killed by  him in his own   
defence1 will easily gain belief4 ,for  
the ,jewish law  supposes this1 when it 
treats of a thief in the act of         
piercing1 or1  as some translate it1    
with a stabbing instrument4 ,this       
interpretation  accords with the law of 
the twelve tables1 which forbids any one
 to  kill a thief in the day time1      
except he defend himself with a weapon4 
,the presumption therefore against a    
thief in the night is that he  defended 
himself in such a manner4 ,now the term 
weapon comprehends not  only an         
instrument of iron1 but as ,caius       
interprets this law1 a club1  or a      
stone4 ,ulpian on the other hand1       
speaking of a thief taken in the  night1
 says that the person who kills him will
 incur no guilt1 provided  that in      
saving his property he could not spare  
his life1 without  endangering his own4 
,there is a presumption1 as it has been 

already  observed1 in favour of the     
person who has killed a thief taken in  
the  night4 ,but if there be evidence to
 prove1 that the life of the person  who
 killed the thief was in no danger2 then
 the presumption in his  favour fails1  
and the act amounts to murder4    ,the  
law of the twelve tables indeed         
required1 that the person who took  a   
thief either in the day time1 or in the 
night1 should make a noise  that1 if    
possible1 the magistrates or neighbours 
might assemble to  assist him and give  
evidence4 ,but as such a concourse could
 more easily  be assembled in the day   
time than in the night1 as ,ulpian      
observes  upon the passage before quoted
 from ,demosthenes1 the affirmation of a
  person declaring the danger he was in 
during the night is more readily        
believed4 ,to which an additional       
observation may be made1 that1 even     
under equal circumstances1 the danger   
which happens by night can be  less     
examined1 and ascertained1 and therefore

 is the more terrible4  ,the ,jewish law
 therefore1 no less than the ,roman1    
acting upon the same  principle of      
tenderness forbids us to kill any one1  
who has taken our  goods1 unless for the
 preservation of our own lives4         
,,xvi4#af ,what has been already said of
 the right of defending our  persons and
 property1 though regarding chiefly     
private war1 may  nevertheless be       
applied to public hostilities1 allowing 
for the  difference of circumstances4   
,for private war may be considered as an
  instantaneous exercise of natural     
right1 which ceases the moment that     
legal redress can be obtained4 ,now as  
public war can never take place1  but   
where judicial remedies cease to exist1 
it is often protracted1  and the spirit 
of hostility inflamed by the continued  
accession of  losses and injuries4      
,besides1 private war extends only to   
self-defence1  whereas sovereign powers 
have a right not only to avert1 but to  
punish  wrongs4 ,from whence they are   

authorised to prevent a remote as well  
as  an immediate aggression4 ,though the
 suspicion of hostile intentions1 on    
the part of another power1 may not      
justify the commencement of actual  war1
 yet it calls for measures of armed     
prevention1 and will authorise  indirect
 hostility4 ,points1 which will be      
discussed in another place4    ,,xvii4  
,some writers have advanced a doctrine  
which can never be  admitted1           
maintaining that the law of nations     
authorises one power  to commence       
hostilities against another1 whose      
increasing greatness  awakens her       
alarms4 ,as a matter of expediency such 
a measure may be  adopted1 but the      
principles of justice can never be      
advanced in its  favour4 ,the causes    
which entitle a war to the denomination 
of just are  somewhat different from    
those of expediency alone4 ,but to      
maintain  that the bare probability of  
some remote1 or future annoyance from a 
neighbouring state affords a just ground

 of hostile aggression1 is a  doctrine  
repugnant to every principle of equity4 
,such however is the  condition of human
 life1 that no full security can be     
enjoyed4 ,the only  protection against  
uncertain fears must be sought1 not from
 violence1  but from the divine         
providence1 and defensive precaution4   
,,xviii4 ,there is another opinion1 not 
more admissible1 maintaining  that the  
hostile acts of an aggressor1 may be    
considered in the light  of defensive   
measures1 because1 say the advocates of 
this opinion1 few  people are content to
 proportion their revenge to the        
injuries they  have received2 bounds    
which in all probability the party      
aggrieved has  exceeded1 and therefore  
in return becomes himself the aggressor4
 ,now  the excess of retaliation cannot1
 any more than the fear of uncertain    
danger1 give a colour of right to the   
first aggression1 which may be          
illustrated by the case of a malefactor1
 who can have no right to wound  or kill

 the officers of justice in their       
attempts to take him1 urging  as a plea 
that he feared the punishment would     
exceed the offense4    ,the first step1 
which an aggressor ought to take1 should
 be an offer of  indemnity to the       
injured party1 by the arbitration of    
some independent  and disinterested     
state4 ,and if this mediation be        
rejected1 then his  war assumes the     
character of a just war4 ,thus ,hezekiah
 when he had not  stood to the          
engagements made by his ancestors1 being
 threatened with  an attack from the    
,king of ,assyria on that account1      
acknowledged his  fault1 and left it to 
the ,king to assign what penalty he     
should pay  for the offence4 ,after he  
had done so1 finding himself again      
attacked1  relying on the justice of his
 cause1 he opposed the enemy1 and       
succeeded by the favour of ,god4        
,pontius the ,samnite1 after restoration
  of the prizes had been made to the    
,romans1 and the promoter of the war    

delivered up into their hands1 said1 ,we
 have now averted the wrath of  heaven1 
which our violation of treaties had     
provoked4 ,but the supreme  being who   
was pleased to reduce us to the         
necessity of restoration1  was not      
equally pleased with the pride of the   
,romans1 who rejected our  offer4 ,what 
farther satisfaction do we owe to the   
,romans1 or to ,heaven1  the arbiter of 
treaties8 ,we do not shrink from        
submitting the measure  of ,,your       
resentment1 or of ,,our punishment to   
the judgment of any people1  or any     
individual4 ,in the same manner1 when   
the ,thebans had offered  the most      
equitable terms to the ,lacedaemonians1 
who still rose higher  in their demands1
 ,aristides says1 that the justice of   
the cause changed  sides and passed from
 the ,lacedaemonians to the ,thebans4   
,,chapter ,,ii4    ,,the ,,general      
,,rights ,,of ,,things4      ,the       
general rights of things--,division of  
what is our own--,the origin      and   

progress of property--,some things      
impossible to be made the      subject  
of property--,the ,sea of this nature1  
in its full extent1 or      in its      
principal parts--,unoccupied lands may  
become the property      of individuals1
 unless they have been previously       
occupied by      the people at          
large--,wild beasts1 fishes1 birds1 may 
become the      property of him who     
seizes them--,in cases of necessity men 
have      a right of using that which   
has already become the property of      
others--,to sanction this indulgence1   
the necessity must be such      that it 
cannot otherwise be avoided--,this      
indulgence not allowed      where the   
possessor is in an equal degree of      
necessity--,the      party thus         
supplying his wants from another's      
property1 bound      to make restitution
 whenever it is possible4 ,the          
application      of this principle to   
the practice of war--,the right to use  
the      property of another1 provided  

that use be no way prejudicial to       
the owner--,hence the right to the use  
of running water--,the right      of    
passing through countries1 and by rivers
 explained--,an inquiry      into the   
right of imposing duties on             
merchandise--,the right of      residing
 for a time in a foreign state--,the    
right of exiles to      reside in the   
dominions of a foreign state1 provided  
they submit      to its laws--,in what  
manner the right of occupying waste     
places is      to be understood--,the   
right to certain articles necessary to  
the      support of human society1 and  
life--,the general right of purchasing  
those articles at a reasonable          
price--,the right to sell1 not of       
equal force and extent--,the right to   
those privileges which are              
promiscuously granted to                
foreigners--,inquiry whether it be      
lawful      to contract with any people 
for the purchase of their productions   
on condition of their not selling the   

same to others4      ,i4 ,among the     
causes assigned to justify war1 we may  
reckon the  commission of injury1       
particularly such as affects any thing  
which  belongs to us4 ,now we establish 
this claim to any thing as our own      
either by a right ,,common to us as men1
 or acquired by us in our  ,,individual 
capacity4 ,but to begin with that which 
is the common right  of all mankind2 we 
may observe that it comprises what is   
called by  legal authorities1 ,corporeal
 and ,incorporeal rights4#ag    ,things 
corporeal are either unappropriated1 or 
made the subjects of  private property4 
,now the things unappropriated1 are such
 that it  may be either possible or     
impossible for them to be reduced to a  
state of private property4#ah ,in order 
therefore to understand this  more      
clearly1 it will be necessary to take a 
survey of the origin of  property4      
,,ii4 ,god gave to mankind in general1  
dominion over all the creatures  of the 
earth1 from the first creation of the   

world2 a grant which  was renewed upon  
the restoration of the world after the  
deluge4 ,all  things1 as ,justin says1  
formed a common stock for all mankind1  
as the  inheritors of one general       
patrimony4 ,from hence it happened1 that
  every man seized to his own use or    
consumption whatever he met with2  a    
general exercise of a right1 which      
supplied the place of private  property4
 ,so that to deprive any one of what he 
had thus seized1 became  an act of      
injustice4 ,which ,cicero has explained 
in his third book1 on  the bounds of    
good and evil1 by comparing the world to
 a ,theatre1 in  which the seats are    
common property1 yet every spectator    
claims that  which he occupies1 for the 
time being1 as his own4 ,a state of     
affairs1  which could not subsist but in
 the greatest simplicity of manners1 and
  under the mutual forbearance and      
good-will of mankind4 ,an example of  a 
community of goods1 arising from extreme
 simplicity of manners1 may  be seen in 

some nations of ,america1 who for many  
ages have subsisted  in this manner     
without inconvenience4 ,the ,essenes of 
old1 furnished an  example of men       
actuated by mutual affection and holding
 all things in  common1 a practice      
adopted by the primitive ,christians at 
,jerusalem1  and still prevailing among 
some of the religious orders4 ,man at   
his  first origin1 requiring no         
clothing1 afforded a proof of the       
simplicity  of manners in which he had  
been formed4 ,yet perhaps1 as ,justin   
says  of the ,scythians1 he might be    
considered as ignorant of vice rather   
than acquainted with virtue2 ,tacitus   
says1 that in the early ages of  the    
world1 men lived free from the influence
 of evil passions1 without  reproach1   
and wickedness2 and consequently without
 the restraints of  punishment4 ,in     
primitive times there appeared among    
mankind1 according  to ,macrobius1 a    
simplicity1 ignorant of evil1 and       
inexperienced in  craft3 a simplicity   

which in the book of ,wisdom seems to be
 called  integrity1 and by the ,apostle 
,paul simplicity in opposition to       
subtilty4 ,their sole employment was the
 worship of ,god1 of which the  tree of 
life was the symbol1 as it is explained 
by the ancient ,hebrews1  whose opinion 
is confirmed by the ,book of            
,revelation4    ,men at that period     
subsisted upon the spontaneous          
productions of the  ground3 a state of  
simplicity to which they did not long   
adhere1 but  applied themselves to the  
invention of various arts1 indicated by 
the  tree of knowledge of good and evil1
 that is the knowledge of those  things 
which may be either used properly1 or   
abused2 which ,philo  calls a middle    
kind of wisdom4 ,in this view1 ,solomon 
says1 ,god hath  created men upright1   
that is1 in simplicity1 but they have   
sought out  many inventions1 or1 in the 
language of ,philo1 they have inclined  
to  subtilty4 ,in the sixth oration of  
,dion ,prusaeensis it is said1 the      

descendants have degenerated from the   
innocence of primitive times1           
contriving many subtile inventions no   
way conducive to the good of  life2 and 
using their strength not to promote     
justice1 but to gratify  their          
appetites4 ,agriculture and pasturage   
seem to have been the  most ancient     
pursuits1 which characterized the first 
brothers4 ,some  distribution of things 
would necessarily follow these different
 states2  and we are informed by holy   
writ1 that the rivalry thus created     
ended  in murder4 ,at length men        
increasing in wickedness by their evil  
communications with each other1 the race
 of ,giants1 that is of strong  and     
violent men appeared1 whom the ,greeks  
denominate by a title1  signifying those
 who make their own hands and strength  
the measure of  justice4    ,the world  
in progress of time being cleared of    
this race by the deluge1  the savage was
 succeeded by a softer and more sensual 
way of life1  to which the use of wine  

proved subservient1 being followed by   
all  the evil consequences of           
intoxication4 ,but the greatest breach  
in  the harmony of men was made by      
ambition1 which is considered in some   
measure1 as the offspring of a noble    
mind4 ,its first and most eminent       
effects appeared in the attempt to raise
 the tower of ,babel2 the  failure of   
which caused the dispersion of mankind1 
who took possession  of different parts 
of the earth4    ,still after this a    
community of lands for pasture1 though  
not of  flocks1 prevailed among men4    
,for the great extent of land was       
sufficient for the use of all occupants1
 as yet but few in number1  without     
their incommoding each other4 ,in the   
words of the ,poet1 it was  deemed      
unlawful to fix a land mark on the      
plain1 or to apportion it out  in stated
 limits4 ,but as men increased in       
numbers and their flocks in  the same   
proportion1 they could no longer with   
convenience enjoy the  use of lands in  

common1 and it became necessary to      
divide them into  allotments for each   
family4 ,now in the hot countries of the
 ,east1 wells  would be objects of great
 importance1 for the refreshment of     
their  herds and flocks2 so that in     
order to avoid strife and inconvenience1
  all would be anxious to have them as  
possessions of their own4 ,these        
accounts we derive from sacred history1 
and they are found to agree  with the   
opinions maintained upon this subject by
 ,philosophers and  ,poets1 who have    
described the community of goods1 that  
prevailed in  the early state of the    
world1 and the distribution of property 
which  afterwards took place4 ,hence a  
notion may be formed of the reason  why 
men departed from the primaeval state of
 holding all things in  common1         
attaching the ideas of property1 first  
to moveable and next to  immoveable     
things4    ,when the inhabitants of the 
earth began to acquire a taste for more 
delicate fare than the spontaneous      

productions of the ground1 and to  look 
for more commodious habitations than    
caves1 or the hollow of  trees1 and to  
long for more elegant cloathing than the
 skins of wild  beasts1 industry became 
necessary to supply those wants1 and    
each  individual began to apply his     
attention to some particular art4 ,the  
distance of the places too1 into which  
men were dispersed1 prevented  them from
 carrying the fruits of the earth to a  
common stock1 and in  the next place1   
the ,,want of just principle and        
equitable kindness would  destroy that  
equality which ought to subsist both in 
the labour of  producing and consuming  
the necessaries of life4    ,at the same
 time1 we learn how things passed from  
being held in common  to a state of     
property4 ,it was not by the act of the 
mind alone that  this change took place4
 ,for men in that case could never know1
 what  others intended to appropriate to
 their own use1 so as to exclude  the   
claim of every other pretender to the   

same2 and many too might  desire to     
possess the same thing4 ,property       
therefore must have been  established   
either by express agreement1 as by      
division1 or by tacit  consent1 as by   
occupancy4 ,for as soon as it was found 
inconvenient  to hold things in common1 
before any division of lands had been   
established1 it is natural to suppose it
 must have been generally  agreed1 that 
whatever any one had occupied should be 
accounted his own4  ,cicero1 in the     
third book of his ,offices says1 it is  
admitted as an  universal maxim1 not    
repugnant to the principles of natural  
law1 that  every one should rather wish 
himself to enjoy the necessaries of     
life1  than leave them for the          
acquisition of another4 ,which is       
supported by  ,quintilian1 who says1 if 
the condition of life be such1 that     
whatever  has fallen to the private use 
of any individual1 becomes the property 
of such holder1 it is evidently unjust  
to take away any thing which  is        

possessed by such a right4 ,and the     
ancients in styling ,ceres a  law-giver1
 and giving the name of ,thesmophoria to
 her sacred rights1  meant by this to   
signify that the division of lands had  
given birth to  a new kind of right4    
,,iii4 ,notwithstanding the statements  
above made1 it must be admitted  that   
some things are impossible to be reduced
 to a state of property1  of which the  
,sea affords us an instance both in its 
general extent1  and in its principal   
branches4 ,but as some are willing to   
make this  concession with regard to    
individuals1 but not with regard to     
nations1  the position advanced in the  
beginning of this section may be proved 
from the following moral argument1 that 
as in this case the reason no  longer   
subsists why men should hold all things 
in common1 the practice  ceases also4   
,for the magnitude of the sea is such1  
as to be sufficient  for the use of all 
nations1 to allow them without          
inconvenience and  prejudice to each    

other the right of fishing1 sailing1 or 
any other  advantage which that element 
affords4 ,the same may be said of air as
  common property1 except that no one   
can use or enjoy it1 without at  the    
same time using the ground over which it
 passes or rests4 ,so that  the         
amusement of fowling cannot be followed1
 except by permission1  without         
trespassing upon the lands of some      
owner1 over which the birds  fly4       
,the same appellation of ,,common may be
 given to the sand of the shore1  which 
being incapable of cultivation1 is left 
free to yield its  inexhaustible        
supplies for the use of all4    ,there  
is a natural reason also1 which renders 
the sea1 considered in  the view already
 taken1 incapable of being made         
property3 because  occupancy can never  
subsist1 but in things that can be      
confined to  certain permanent bounds4  
,from whence ,thucydides gives the name 
of  infinite space to unoccupied lands1 
and ,isocrates speaking of that         

occupied by the ,athenians calls it that
 which has been measured by us  into    
alloted parts4 ,but fluids1 which cannot
 be limited or restrained1  except they 
be contained within some other          
substance1 cannot be  occupied4 ,thus   
ponds1 and lakes and rivers likewise1   
can only be made  property as far as    
they are confined within certain banks4 
,but the  ocean as it is equal to1 or   
larger than the earth1 cannot be        
confined  within the land3 so that the  
ancients said the earth was bounded in  
by  the sea like a girdle surrounding   
it4 ,nor can any imaginable division  of
 it have been originally framed4 ,for as
 the greatest part of it was  unknown1  
it was impossible that nations far      
removed from each other  could agree    
upon the bounds to be assigned to       
different parts4    ,whatever therefore 
was the common property of all1 and     
after a general  division of all other  
things1 retained its original state1    
could  not be appropriated by division1 

but by occupancy4 ,and the marks of     
distinction and separation by which its 
different parts were known1  followed   
such appropriation4    ,,iv4 ,the next  
matters to be noticed are those things1 
which though  not yet made property1 may
 be reduced to that condition4 ,under   
this  description come waste lands1     
desert islands1 wild beasts1 fishes1 and
  birds4 ,now in these cases there are  
two things to be pointed out1 which  are
 a double kind of occupancy that may    
take place2 the one in the  name of the 
,sovereign1 or of a whole people1 the   
other by individuals1  converting into  
private estates the lands which they    
have so occupied4  ,the latter kind of  
individual property proceeds rather from
 assignment  than from free occupancy4  
,yet any places that have been taken    
possession of in the name of a          
sovereign1 or of a whole people1 though 
not portioned out amongst individuals1  
are not to be considered as  waste      
lands1 but as the property of the first 

occupier1 whether it be  the ,king1 or a
 whole people4 ,of this description are 
rivers1 lakes1  forests1 and wild       
mountains4    ,v4 ,as to wild beasts1   
fishes1 and birds1 it is to be observed 
that the  sovereign of the respective   
lands1 or waters where they are found1  
has a legal right to prohibit any one   
from taking them1 and thereby  acquiring
 a property in them4 ,a prohibition     
extending to foreigners1  as well as    
subjects4 ,to foreigners2 because by all
 the rules of moral  law they owe       
obedience to the sovereign1 for the time
 during which they  reside in his       
territories4 ,nor is there any validity 
in the objection  founded on the ,roman 
,law1 the ,law of nature1 or the ,law of
 nations1  which1 it is said1 declare   
such animals to be beasts of chace free 
to  every one's hunting4 ,for this is   
only true1 where there is no civil  law 
to interpose its prohibition2 as the    
,roman law left many things in  their   
primitive state1 which by other nations 

were placed upon a very  different      
footing4 ,the deviations therefore from 
the state of nature1  which have been   
established by the civil law1 are       
ordained by every  principle of natural 
justice to be obeyed by mankind4 ,for   
although the  civil law can enjoin      
nothing which the law of nature         
prohibits1 nor  prohibit any thing which
 it enjoins1 yet it may circumscribe    
natural  liberty1 restraining what was  
before allowed2 although the restraint  
should extend to the very acquisition of
 property1 to which every man  ,,at     
,,first had a right by the law of       
nature4    ,,vi4 ,the next thing to be  
considered is the right1 which men have 
to  the common use of things1 already   
appropriated2 terms1 in which at the    
first sight there appears to be some    
inconsistency1 as it appears that  the  
establishment of property has absorbed  
every right that sprung from  a state of
 things held in common4 ,but this is by 
no means the case4 ,for  the intention  

of those1 who first introduce private   
property1 must be  taken into the       
account4 ,and it was but reasonable to  
suppose1 that in  making this           
introduction of property1 they would    
depart as little as  possible from the  
original principles of natural equity4  
,for if written  laws are to be         
construed in a sense1 approaching as    
nearly as possible  to the laws of      
nature1 much more so are those customs  
which are not  fettered with the literal
 restrictions of written maxims4 ,from  
hence it  follows that in cases of      
extreme necessity1 the original right of
 using  things1 as if they had remained 
in common1 must be revived2 because in  
all human laws1 and consequently in the 
laws relating to property1 the  case of 
extreme necessity seems to form an      
exception4    ,upon this principle is   
built the maxim that if in a voyage     
provisions  begin to fail1 the stock of 
every individual ought to be produced   
for  common consumption2 for the same   

reason a neighbouring house may be      
pulled down to stop the progress of a   
fire3 or the cables or nets1  in which a
 ship is entangled1 may be cut1 if it   
cannot otherwise be  disengaged4        
,maxims1 none of which were introduced  
by the civil law1 but  only explained by
 it according to the rules of natural   
equity4    ,now among ,theologians also 
it is a received opinion1 that if in    
urgent  distress1 any one shall take    
from another what is absolutely         
necessary  for the preservation of his  
own life1 the act shall not be deemed a 
theft4 ,a rule not founded1 as some     
allege1 solely upon the law of  charity1
 which obliges every possessor to apply 
some part of his wealth  to relieve the 
needy2 but upon the original division of
 lands among  private owners1 which was 
made with a reservation in favour of the
  primitive rights of nature4 ,for if   
those who at first made the division    
had been asked their opinion upon this  
point1 they would have given the  same  

reason that has just been advanced4     
,necessity1 says ,seneca1 the  great    
protectress of human infirmity breaks   
through all human laws1  and all those  
made in the spirit of human regulations4
 ,cicero in his  eleventh ,philippic1   
says1 that ,cassius went into ,syria1   
which might be  considered as another's 
province1 if men adhered to written     
laws1 but  if these were abolished1 it  
would be considered as his own by the   
law  of nature4 ,in the sixth book and  
fourth chapter of ,quintus ,curtius1  we
 find an observation1 that in a common  
calamity every man looks to  himself4   
,,vii4 ,now this indulgence must be     
granted with precautions and            
restrictions1 to prevent it from        
degenerating into licentiousness4 ,and  
of these precautions1 the first requires
 the distressed party to try  every mode
 of obtaining relief1 by an appeal to a 
magistrate1 or by  trying the effect of 
entreaty to prevail upon the owner to   
grant what  is necessary for his        

pressing occasions4 ,plato allows any   
one to seek  water from his neighbour's 
well1 after having dug to a certain     
depth in  his own without effect4 ,solon
 limits the depth to forty cubits2 upon 
which ,plutarch remarks1 that he        
intended by this to relieve necessity   
and difficulty1 but not to encourage    
sloth4 ,xenophon in his answer to  the  
,sinopians1 in the fifth book of the    
expedition of ,cyrus1 says1  wherever we
 come1 whether into a barbarous country 
or into any part of  ,greece1 and find  
the people unwilling to afford us       
supplies1 we take  them1 not through    
motives of wantonness1 but from the     
compulsion of  necessity4    ,,viii4 ,in
 the next place this plea of necessity  
cannot be admitted1  where the possessor
 is in an equal state of necessity      
himself4 ,for  under equal circumstances
 the owner has a better right to the use
 of  his possessions4 ,though           
,lactantius maintains that it is no mark
 of  folly to forbear thrusting another 

from the same plank in a shipwreck  in  
order to save yourself4 ,because you    
have thereby avoided hurting  another3 a
 sin which is certainly a proof of      
wisdom to abstain from4  ,cicero1 in the
 third book of his offices1 asks this   
question1 if a wise  man1 in danger of  
perishing with hunger1 has not a right  
to take the  provisions of another1 who 
is good for nothing8 ,to which he       
replies2 ,by  no means4 ,for no one's   
life can be of such importance as to    
authorize  the violation of that general
 rule of forbearance1 by which the peace
  and safety of every individual are    
secured4    ,,ix4 ,in the third place1  
the party thus supplying his wants from 
the property of another1 is bound to    
make restitution1 or give an  equivalent
 to the owner1 whenever that is         
possible4 ,there are some  indeed1 who  
deny this1 upon the ground that no one  
is bound to give an  indemnity for      
having exercised his own right4 ,but    
strictly speaking1  it was not a full   

and perfect right1 which he exercised2  
but a kind of  permission1 arising out  
of a case of necessity1 and existing no 
longer  than while the necessity        
continued4 ,for such a permissive right 
is only  granted in order to preserve   
natural equity in opposition to the     
strict  and churlish rigour of exclusive
 ownership4    ,x4 ,hence it may be     
inferred1 that1 in the prosecution of a 
just war1  any power has a right to take
 possession of a neutral soil2 if there 
be  real grounds1 and not imaginary     
fears for supposing the enemy intends   
to make himself master of the same1     
especially if the enemy's occupying  it 
would be attended with imminent and     
irreparable mischief to that  same      
power4 ,but in this case the restriction
 is applied that nothing be  taken but  
what is actually necessary to such      
precaution and security4  ,barely       
occupying the place is all that can be  
justified3 leaving to  the real owner   
the full enjoyment of all his rights1   

immunities1 and  jurisdiction1 and all  
the productions of his soil4 ,and this  
must be  done too with the full         
intention of restoring the place to its 
lawful  ,sovereign1 whenever the        
necessity1 for which it was occupied1   
may  cease4 ,the retaining of ,enna1    
,livy says1 was either an act of        
violence1  or a necessary measure2 by   
violence meaning the least departure    
from  necessity4 ,the ,greeks1 who were 
with ,xenophon being in great want of   
ships1 by ,xenophon's own advice1 seized
 upon those that were passing1  still   
preserving the property untouched for   
the owners1 supplying the  sailors with 
provisions1 and paying them wages4 ,the 
principal right  therefore1 founded upon
 the original community of goods1       
remaining  since the introduction of    
property1 is that of necessity1 which   
has  just been discussed4    ,,xi4      
,there is another right1 which is that  
of making use of the property  of       
another1 where such use is attended with

 no prejudice to the owner4  ,for why1  
says ,cicero1 should not any one1 when  
he can do it without  injury to himself1
 allow another to share with him those  
advantages1  which are useful to the    
receiver1 and no way detrimental to the 
giver8  ,seneca therefore observes1 that
 it is no favour to allow another to    
light his fire from your flame4 ,and in 
the #gth book of ,plutarch's            
,symposiacs1 we find an observation1    
that when we have provisions more  than 
sufficient for our own consumption it is
 wicked to destroy the  remainder2 or   
after supplying our own wants1 to       
obstruct or destroy the  springs of     
water2 or after having finished our     
voyage1 not to leave  for other         
passengers the sea-marks1 that have     
enabled us to steer our  course4        
,,xii4 ,upon the principles already     
established1 a river1 as such1 is the   
property of that people1 or of the      
sovereign of that people1 through  whose
 territories it flows4 ,he may form     

quays1 and buttresses upon that  river1 
and to him all the produce of it        
belongs4 ,but the same river1  as a     
running water1 still remains common to  
all to draw or drink it4  ,ovid         
introduces ,latona thus addressing the  
,lydians1 ,why do you refuse  water1 the
 use of which is common8 where he calls 
water a public gift  that is common to  
men1 taking the word public in a more   
general sense  than as applied to any   
,,people1 a meaning in which some things
 are said  to be public by the law of   
nations4 ,and in the same sense ,virgil 
has  asserted water to be free and open 
to all men4    ,,xiii4 ,it is upon the  
same foundation of common right1 that a 
free  passage through countries1 rivers1
 or over any part of the sea1 which     
belongs to some particular people1 ought
 to be allowed to those1 who  require it
 for the necessary occasions of life2   
whether those occasions  be in quest of 
settlements1 after being driven from    
their own country1  or to trade with a  

remote nation1 or to recover by just war
 their lost  possessions4 ,the same     
reason prevails here as in the cases    
above named4  ,because property was     
originally introduced with a reservation
 of that  use1 which might be of general
 benefit1 and not prejudicial to the    
interest of the owner3 an intention     
evidently entertained by those1  who    
first devised the separation of the     
bounteous gifts of the creator  into    
private possessions4 ,there is a        
remarkable instance of this in the      
,mosaic history1 when the leader of the 
children of ,israel required a  free    
passage for that people1 promising to   
the ,king of ,edom1 and to the  ,king of
 the ,amorites1 that he would go by the 
highway1 without setting  a foot upon   
the soil of private possessions1 and    
that the people should  pay the price of
 everything1 which they might have      
occasion to use4  ,upon these equitable 
terms being rejected1 ,moses was        
justified in  making war upon the       

,amorites4 ,because1 says ,augustin1 an 
inoffensive  passage1 a right interwoven
 with the very frame of human society1  
was  refused4 ,the ,greeks under the    
command of ,clearchus1 said1 we are upon
  the way to our home1 if no one        
interrupt us2 but every attempt to      
molest us1 we are1 with the assistance  
of heaven1 determined to avenge4    ,not
 unlike this answer of the soldiers     
under ,clearchus is the question  put to
 the different nations of ,thrace by    
,agesilaus1 who desired to  know whether
 they wished him to pass through their  
country as a friend1  or as an enemy4   
,when the ,boeotians hesitated upon some
 propositions  made to them by          
,lysander1 he asked them whether they   
intended that he  should pass with      
erected or inclined spears1 meaning by  
the expression  in a hostile or a quiet 
manner4 ,we are informed by ,tacitus1   
that the  ,batavians1 as soon as they   
came near the camp at ,bonn1 sent a     
message  to ,herennius ,gallus1         

importing that they had no hostile      
design2 that  if not obstructed1 they   
would march in a peaceable manner2 but  
if they  met with opposition they would 
cut their way sword in hand4 ,when      
,cimon in carrying supplies to the      
,lacedaemonians1 had marched with his   
troops through some part of the         
,corinthian district1 the ,corinthians  
expostulated upon his conduct as a      
violation of their territory1  because  
he had done it without asking their     
leave1 at the same time  observing1 that
 no one knocks at another man's door1 or
 presumes to  enter the house without   
obtaining the master's leave4 ,to whom  
he  replied1 you never knocked at the   
gates of ,cleone and ,megara1 but broke 
them down1 believing1 ,i suppose1 that  
no right ought to withstand the  force  
of the mighty4    ,now between these two
 extremes there is a middle course1     
requiring a  free passage to be first   
asked2 the refusal of which will justify
 the  application of force4 ,thus       

,agesilaus in his return from ,asia when
 he  had asked a passage of the ,king of
 the ,macedonians1 who answered that  he
 would consider of it1 said1 you may    
consider1 if you please1 but we  shall  
pass in the mean time4    ,the fears1   
which any power entertains from a       
multitude in arms passing  through its  
territories1 do not form such an        
exception as can do away  the rule      
already laid down4 ,for it is not proper
 or reasonable that the  fears of one   
party should destroy the rights of      
another4 ,especially1  as necessary     
precautions and securities may be used1 
such as those1  for instance1 of        
requiring that the troops shall pass    
without arms1 or  in small bodies2 a    
promise which the ,agrippinians made to 
the ,germans4  ,and1 as we are informed 
by ,strabo1 the practice still prevails 
in the  country of the ,eleans4 ,another
 security may be found in providing     
garrisons at the expense of the party1  
to whom the passage is granted2  or in  

giving hostages2 the condition1 which   
,seleucus demanded of  ,demetrius1 for  
permitting him to remain within his     
territories4 ,nor  is the fear of       
offending that power1 which is the      
object of attack1 a  sufficient pretext 
for refusing the passage of the troops  
to the state  that is engaged in a just 
war4 ,nor is it a proper reason to      
assign for  a refusal1 to say that      
another passage may be found2 as every  
other  power might allege the same1 and 
by this means the right of passage      
would be entirely defeated4 ,the request
 of a passage therefore1 by the  nearest
 and most commodious way1 without doing 
injury and mischief1 is  a sufficient   
ground upon which it should be granted4 
,it alters the case  entirely1 if the   
party making the request is engaged in  
unjust war1  and is marching with the   
troops of a power hostile to the        
sovereign of  that territory2 for in    
this instance1 a passage may be refused4
 ,for the  sovereign has a right to     

attack that power in his own territory1 
and to  oppose its march4    ,now a free
 passage ought to be allowed not only to
 persons1 but to  merchandise4 ,for no  
power has a right to prevent one nation 
from  trading with another at a remote  
distance2 a permission which for the    
interest of society should be           
maintained4 ,nor can it be said that any
  one is injured by it4 ,for though he  
may be thereby deprived of an  exclusive
 gain1 yet the loss of what is not his  
due1 as a ,,matter ,,of  ,,right1 can   
never be considered as a damage or the  
violation of a claim4    ,,xiv4 ,but it 
will form a subject of inquiry1 whether 
the sovereign of  the country has a     
right to impose duties on goods carried 
by land1 or  upon a river or upon any   
part of the sea1 which may form an      
accession  to his dominions4 ,it would  
undoubtedly be unjust for any burdens   
foreign to the nature of trade to be    
imposed upon such goods4 ,thus          
strangers merely passing through a      

country would have no right to pay  a   
poll-tax1 imposed to support the        
exigencies of the state4 ,but if the    
sovereign incurs expence by providing   
security and protection to trade1  he   
has a right to reimburse himself by the 
imposition of moderate and  reasonable  
duties4 ,it is the ,,reasonableness of  
them1 which constitutes  the justice of 
customs and taxes4 ,thus ,solomon       
received tolls for  horses and linen    
that passed over the ,isthmus of ,syria4
 ,pliny1  speaking of frankincense1     
observes that as it could not be        
transported  but by the ,gebanites1 a   
duty upon it was paid to their king4 ,in
 the  same manner1 as ,strabo informs us
 in his fourth book1 the people of      
,marseilles derived great wealth from   
the canal which ,marius had made  from  
the ,rhone to the sea1 by exacting      
tribute of all that sailed upon  it to  
and fro with vessels4 ,in the eighth    
book of the same writer1 we  are told   
that the ,corinthians imposed a duty    

upon all goods1 which1 to  avoid the    
dangerous passage of ,cape ,malea1 were 
transported by land  from sea to sea4   
,the ,romans too made the passage of the
 ,rhine a source  of tribute1 and       
,seneca relates that a toll was paid for
 going over  bridges4 ,the works of     
legal writers abound in instances of    
this kind4  ,but it frequently happens  
that extortion is practised in these    
matters1  which ,strabo forms into a    
subject of complaint against chiefs of  
the  ,arabian tribes1 concluding that it
 would be unlikely for men of that      
lawless kind to impose upon the goods of
 merchants any duties that were  not    
oppressive4    ,,xv4 ,those going with  
merchandise or only passing through a   
country1  ought to be allowed to reside 
there for a time1 if the recovery of    
health1 or any other just cause should  
render such residence necessary4  ,for  
these may be reckoned among the innocent
 uses of our right4  ,thus ,ilioneus in 
,virgil calls heaven to witness the     

injustice of  the ,africans in driving  
him and his shipwrecked companions from 
the  hospitable use of the shore1 and we
 are informed by ,plutarch in his  life 
of ,pericles that all the ,grecians     
approved of the complaint1 which  the   
,megarensians made against the          
,athenians1 who had prohibited them     
from setting foot upon the soil of their
 territories1 or carrying a  vessel into
 their harbours4 ,so the ,lacedaemonians
 regarded this as the  most sufficient  
grounds to justify the war4    ,from    
hence results the right of erecting a   
temporary hut1 upon the  shore1         
although1 for instance1 the same shore  
is allowed to be the  property of the   
people of that place4 ,for what         
,pomponius says of its  being necessary 
to obtain the ,praetor's leave1 before a
 building can  be raised upon the public
 shore1 relates to structures of a      
permanent  kind1 when the massy piles of
 stone1 as the ,poet says1 encroach upon
  the sea1 and the affrighted fish feel 

their waves contracted4    ,,xvi4 ,nor  
ought a permanent residence to be       
refused to foreigners1 who1  driven from
 their own country1 seek a place or     
refuge4 ,but then it is  only upon      
condition that they submit to the       
established laws of the  place1 and     
avoid every occasion of exciting tumult 
and sedition4 ,a  reasonable rule1 which
 the divine poet has observed1 when he  
introduces  ,aeneas making an offer that
 ,latinus1 who had become his           
father-in-law1  should retain all       
military and civil power4 ,and in       
,dionysius of  ,halicarnassus1 ,latinus 
admits the proposal of ,aeneas to be    
just2 as  he came through necessity in  
quest of a settlement4 ,to drive away   
refugees1 says ,strabo1 from            
,eratosthenes1 is acting like           
barbarians2  and a conduct like this in 
the ,spartans was also condemned4 ,st4  
,ambrose passes the same sentence of    
condemnation upon those powers1 who     
refuse all admission to strangers4 ,yet 

settlers of this description  have no   
right to demand a share in the          
government4 ,a proposal of this  kind   
made by the ,minyae to the              
,lacedaemonians1 who had received them1 
is very properly considered by          
,herodotus as insolent1 and             
unreasonable4    ,,xvii4 ,it is indeed  
but an act of common humanity in a      
sovereign to  allow strangers1 at their 
request1 liberty to fix their residence 
upon  any waste or barren lands within  
his dominions1 still reserving to       
himself all the rights of sovereignty4  
,seven hundred acres of barren  and     
uncultivated land1 as ,servius observes1
 were given by the native  ,latins to   
the ,trojans4 ,dion ,prusaeensis1 in his
 seventh oration1 says1  that they      
commit no crime of trespass1 who take   
upon them to cultivate  waste lands4    
,the refusal of this privilege made the 
,ansibarians  exclaim1 the firmament    
over our heads is the mansion of the    
deity3 the  earth was given to man2 and 

what remains unoccupied1 lies in common 
to all4 ,yet that complaint did not     
apply exactly to their case4 ,for  those
 lands could not be called unoccupied1  
as they served to supply  the ,roman    
army with forage for their cattle1 which
 certainly furnished  the ,romans with a
 just pretext for refusing to grant     
their request4 ,and  with no less       
propriety the ,romans asked the ,galli  
,senones if it were  right to demand    
lands already possessed1 and to threaten
 to take them  by force4    ,,xviii4    
,since the ,,common ,,right ,,to        
,,things has been established1 the      
,,common ,,right ,,to ,,actions follows 
next in order1 and this right is either 
absolute1 or established by the         
supposition of a general agreement      
amongst mankind4 ,now all men have      
absolutely a right to do such or  such  
acts as are necessary to provide        
whatever is essential to the  existence 
or convenience of life4 ,,convenience is
 included in this  right2 for there is  

no occasion here to imagine an existence
 of the  same necessity as was requisite
 to authorize the seizing of another's  
property4 ,because the point of         
discussion here is not whether any act  
is done ,,against ,,the ,,will of an    
owner1 but whether we acquire what is   
necessary for our wants ,,according ,,to
 ,,the ,,terms to which the owner has   
agreed4#ai ,supposing there is nothing  
illegal in the contract1 nor  any wilful
 intention on his part to make it null  
and void4 ,for any  impediment created  
by the owner in such transactions1 is   
repugnant  to the very principles of    
natural justice1 which suppose an       
equality  of upright dealing to subsist 
in both the parties concerned4 ,st4     
,ambrose calls a fraudulent conduct of  
that kind1 an attempt to deprive  men of
 their share in the goods of a common   
parent1 to withhold the  productions of 
nature which are the birthright of all1 
and to destroy  that commerce which is  
the very support of life4 ,for we are   

not  treating of superfluities and      
luxuries1 but of those things1 which are
  essential to life1 as physic1 food and
 cloathing4    ,,xix4 ,from what has    
already been proved1 it follows that all
 men have a  right to purchase the      
necessaries of life at a reasonable     
price1 except  the owners want them for 
their own use4 ,thus in a great scarcity
 of  corn1 there would be no injustice  
in their refusing to sell4 ,and yet  in 
such a time of necessity foreigners1 who
 have been once admitted1  cannot be    
driven away2 but as ,st4 ,ambrose shews 
in the passage already  quoted1 a common
 evil must be borne by all alike4       
,,xx4 ,now owners have not the same     
right in the sale of their goods3 for   
others are at full liberty to determine 
whether they will purchase  certain     
articles or not4 ,the ancient ,belgians1
 for instance1 allowed  not wines and   
other foreign merchandise to be imported
 among them4 ,the  same rule1 we are    
informed by ,strabo1 was practised by   

the ,nabathaean  ,arabians4    ,,xxi4   
,it is supposed to be generally agreed  
among mankind1 that the  privileges1    
which any nation grants promiscuously to
 the subjects  of foreign powers or     
countries1 are the common right of      
all4#bj  ,consequently the exclusion of 
any one people from these rights would  
be considered as an injury to that      
people4 ,thus1 wherever foreigners  in  
general are allowed to hunt1 to fish1 to
 shoot1 to gather pearls1  to succeed to
 property by testament1 to sell         
commodities1 or to form  intermarriages1
 the same privileges cannot be refused  
to any particular  people1 unless they  
have by misconduct forfeited their      
right4 ,on which  account the tribe of  
,benjamin was debarred from             
intermarrying with  other tribes4       
,,xxii4 ,it has sometimes been a subject
 of inquiry whether one nation  may     
lawfully agree with another to exclude  
all nations but herself  from purchasing
 certain productions1 which are the     

peculiar growth of  her soil4 ,an       
agreement which1 it is evident1 may be  
lawfully made2 if  the purchaser intends
 to supply other nations with those     
articles at a  reasonable price4 ,for it
 is a matter of indifference to other   
nations  ,,of ,,whom they purchase1     
provided they can have a reasonable     
supply for  their wants4 ,nor is there  
any thing unlawful in allowing one      
people  an advantage over another in    
this respect1 particularly for a nation 
who has taken another under her         
protection and incurred expence on  that
 account4 ,now such a monopoly1 under   
the circumstances already  mentioned1 is
 no way repugnant to the law of         
nature1#ba though it  may be sometimes  
for the interest of the community to    
prohibit it by  express laws4           
,,chapter ,,iii4    ,,on ,,the          
,,original ,,acquisition ,,of ,,things1 
,,and ,,the ,,right ,,of ,,property ,,in
  ,,seas ,,and ,,rivers4                
,specification of moveable              

property--,the difference between       
sovereignty and property--,the right to 
moveables by occupancy may      be      
superseded by law--,rivers may be       
occupied--,right to seas--,on the       
treaties binding a people not to        
navigate the seas beyond certain        
bounds--,inquiry into the nature of the 
change which a river1      changing its 
course1 makes in the adjoining          
territories--,what      determination is
 to be made1 where the river has        
entirely      changed its               
channel--,sometimes a whole river may   
accrue to a      territory--,things     
deserted belong to the first occupier4  
,i4 ,among the means of acquiring       
property1 ,paulus the ,lawyer reckons   
one1 which seems most natural1 and that 
is1 if by the ingenuity of  art1 or the 
exertions of labour we have given to any
 production its  existence among the    
works of man4 ,now as nothing can       
naturally be  produced1 except from some
 materials before in existence1 it      

follows  that1 if those materials were  
our own1 the possession of them under   
any  new shape1 or commodity is only a  
,,continuation of our former property2  
if they belonged to no one1 our         
possession comes under the class of     
title by occupancy3 but if they were    
another's1 no improvement of ours  can  
by the law of nature give us a right of 
property therein4    ,,ii4 ,among those 
things1 which belong to no one1 there   
are two that  may become the subjects of
 occupancy2 and those are jurisdiction1 
or  sovereignty and property4 ,for      
jurisdiction and property are distinct  
from each other in their effects4 ,the  
objects over which sovereignty  may be  
exercised are of a twofold description1 
embracing both persons  and things4 ,but
 this is not the case with property1 the
 right of which  can extend only to the 
irrational and inanimate part of the    
creation4  ,though it might originally1 
for the most part1 be the same act by   
which  sovereignty and property were    

acquired1 yet they are in their nature  
distinct4 ,,sovereignty1 says ,seneca1  
belongs to ,,princes and ,,property  to 
,,individuals4 ,the sovereignty         
therefore1 not only over subjects at    
home1 but over those in the prince's    
foreign dominions passes with the       
hereditary descent of the crown4        
,,iii4 ,in places1 where sovereignty is 
already established1 the right to       
moveables by occupancy1 and indeed every
 original right must give way  to the   
superior sanction of law4 ,and what any 
man before held by any  such right1 he  
would afterwards be considered as       
holding by the laws of  the country4    
,for those original rights were         
,,permissions of the law of  nature1 and
 not commands that were to be           
,,perpetually enforced4 ,for the        
continued establishment of such a right 
as that by prior occupancy1 so  far from
 promoting the welfare1 would operate to
 the very destruction  of human society4
 ,although it may be said by way of     

objection1 that  the law of nations     
seems to admit of such a right1 yet we  
may answer  that if such a rule either  
is or has been commonly received in any 
part  of the world1 it has not the force
 of a general compact binding upon      
different independent nations2 but may  
be considered as one branch of  the     
civil law of many nations1 which any    
state has a right to continue1  or      
repeal according to its own pleasure or 
discretion4 ,there are many  other      
things indeed which legal writers1 in   
treating of the division  and           
acquisition of property1 consider as    
forming a part of the law of  nations4  
,,iv4 ,rivers may be occupied by a      
country1 not including the stream       
above1 nor that below its own           
territories4 ,but the waters which wash 
its lands form an inseparable part of   
the current1 making its way  to the main
 sea4 ,for to constitute the right to a 
property in its  channel1 it is         
sufficient that its sides1 inclosed by  

the banks of that  territory form its   
greatest part1 and that the river itself
 compared  with the land1 makes but a   
small portion4    ,v4 ,in the same      
manner1 the sea appears capable of being
 made a property  by the power possessed
 of the shore on both sides of it2      
although  beyond those limits it may    
spread to a wide extent1 which is the   
case  with a bay1 and with a straight   
beyond each of its outlets into main    
sea or ocean4 ,but this right of        
property can never take place where  the
 sea is of such a magnitude1 as to      
surpass all comparison with that        
portion of the land which it washes4    
,and the right1 which one people or     
prince possesses1 may also be shared by 
a great number of states1 among  whose  
respective territories the sea flows4   
,thus rivers separating  two powers may 
be occupied by both1 to each of whom    
their use and  advantages may be equal4 
,,vi4 ,instances may be found of        
treaties by which one nation binds      

itself  to another1 not to navigate     
particular seas beyond certain bounds4  
,thus between the ,egyptians and the    
,princes inhabiting the borders of  the 
,red ,sea1 it was agreed1 in ancient    
times1 that the former should  not enter
 that sea with any ship of war1 nor with
 more than one  merchant ship4 ,in the  
same manner1 in the time of ,cimon1 the 
,persians  were bound by a treaty1 made 
with the ,athenians1 not to sail with   
any  ship of war between the ,cyanean   
rocks and the ,chelidonian islands2 a   
prohibition1 which1 after the battle of 
,salamis1 restricted any ,persian  armed
 vessel from sailing between ,phaselis  
and the above named rocks4  ,in the one 
year's truce of the ,peloponnesian war1 
the ,lacedaemonians  were prohibited    
from sailing with any ships of war      
whatever1 or indeed  with any other     
ships of more than twenty tons burden4  
,and in the first  treaty1 which the    
,romans1 immediately after the expulsion
 of their  kings1 made with the         

,carthaginians1 it was stipulated that  
neither the  ,romans1 nor their allies  
should sail beyond the promontory of    
,pulchrum1  except they were driven     
thither by stress of weather1 or to     
avoid being  captured by an enemy4 ,but 
in either case they were to take nothing
 more  than necessaries1 and to depart  
before the expiration of five days4 ,and
  in the second treaty1 the ,romans were
 prohibited from committing any  acts of
 piracy1 or even from trading beyond the
 promontory of ,pulchrum1  ,massia and  
,tarseius4    ,in a treaty of peace     
between the ,illyrians and ,romans1 the 
latter  required that they should not   
pass beyond the ,lissus with more than  
two  frigates1 and those unarmed4 ,in   
the peace with ,antiochus1 he was bound 
not to sail within the capes of         
,calycadnius and ,sarpedon1 except with 
ships carrying tribute1 ambassadors1 or 
hostages4 ,now the instances  alluded to
 do not prove the actual occupancy of   
the sea1 or the right  of navigation4   

,for it may happen that both individuals
 and nations  may grant as a matter of  
favour or compact1 not only what they   
have  a competent right to dispose of1  
but that which is the common right  of  
all men as well as of themselves4 ,when 
this happens1 we may say  as ,ulpian did
 on a like occasion1 where an estate had
 been sold with  a reservation1 that the
 purchaser should not fish for ,tunny to
 the  prejudice of the seller4 ,he      
observed that the sea could not be      
rendered  subject to a service1 but     
still the purchaser and those who       
succeeded  to his possession1 were bound
 in honour to observe that part of the  
contract4    ,,vii4 ,whenever a river   
has changed its course1 disputes have   
arisen  between neighboring states to   
decide whether such an alteration       
creates  any change in the adjoining    
territories1 and to whom any addition of
  land occasioned by that change        
accrues4 ,disputes which must be settled
  according to the nature and manner of 

such acquisition4 ,writers1  who have   
treated of the division of land1 have   
described it as of  a threefold nature3 
one kind they name ,,divided and        
,,assigned land1  which ,frontinus the  
,lawyer calls ,,limited1 because it is  
marked out  by artificial boundaries4   
,by land ,,assigned1 is meant that which
 has  been appropriated to a whole      
community1 comprehending a certain      
number  of families2 a hundred for      
instance3 from whence it has derived    
that  name4 ,and those portions are     
called hundreds4 ,there is another      
division  called ,,arcifinium1 which is 
applied when the land is defended       
against  an enemy by the natural        
boundaries of rivers or mountains4      
,these lands  ,aggenus ,urbicus calls   
,,occupatory1 being such as have been   
occupied  either by reason of their     
being vacant1 or by the power of        
conquest4 ,in  the two first kinds of   
lands1 because their extent and bounds  
are fixed  and determined1 though a     

river should change its course1 it      
occasions  no change of territory1 and  
what is added by alluvion will belong to
  the former occupant4    ,in           
arcifinious lands1 where the bounds are 
formed by nature1 any  gradual change in
 the course of the river makes a change 
also in the  boundaries of territory1   
and whatever accession is given by the  
river  to one side1 it will belong to   
the possessor of the land on that side4 
,because the respective nations are     
supposed originally to have taken       
possession of those lands1 with an      
intention of making the ,,middle of     
that river1 as a natural boundary1 the  
line of separation between  them4 ,thus 
,tacitus in speaking of the ,usipians   
and ,tencterians1 who  border on the    
,cattians1 says1 their territory lies on
 the banks of the  ,rhine1 where that   
river1 still flowing in one regular     
channel1 forms a  sufficient boundary4  
,,viii4 ,decisions like those above can 
only take place in instances1  where the

 river has not altered its channel4 ,for
 a river1 dividing  territories1 is not 
to be considered barely as so much      
water1 but as  water flowing in a       
,,particular ,,channel1 and inclosed    
,,within ,,certain  ,,banks4 ,for which 
reason an addition1 a decrease1 or such 
a change of  small portions1 as leaves  
the ancient appearance1 upon the whole1 
nearly the same1 allows us to consider  
the river as still the same4 ,but  if   
the whole face of the river is changed1 
the case will be entirely  altered4 ,for
 as a river may be entirely destroyed by
 the erection of  dams upon the higher  
parts of its stream1 or by digging      
canals1 which  carry off its waters in  
another direction3 so by the desertion  
of its  old channel1 and breaking out   
for itself another course1 it will not  
continue to be same river it was before1
 but will be completely a new  one4 ,in 
the same manner if a river has been     
dried up1 the middle of its  channel    
will remain as the boundary between     

neighbouring states1 who  in taking     
possession of the neighbouring territory
 originally intended  the middle of such
 a river to be the line of separation1  
and under all  changes to preserve the  
same as a permanent limit4 ,but in      
doubtful  cases1 the territories        
bordering upon a river ought to be      
considered  as arcifinious1 because     
nothing can be a more apt mark of       
distinction  than those impassable      
bounds assigned by nature4 ,it very     
seldom indeed  happens1 that the        
artificial or civil admeasurements of   
territory can  be regulated by such     
natural bounds1 as they are1 in general1
 the  effect of original acquisition1 or
 have been ceded by treaty4    ,,ix4    
,although in doubtful cases1 it has been
 said that the territories  on each side
 of a river are determined by the middle
 of the channel2  yet it may happen1 and
 has happened1 that the sole right to a 
river  may belong to the territories on 
one side of it4 ,because that on the    

opposite side was of later occupancy1   
and subsequent to the possession  of    
that river by the other power3 or       
because this sole right may have  been  
so settled by treaty4    ,x4 ,it is not 
unworthy of observation that things     
which have had an  owner1 but have      
ceased to have one1 become subject to   
the right by  original acquisition4     
,they are supposed to have been         
abandoned from the  want of an owner1   
and therefore have returned to the      
original state  of common stock4 ,but at
 the same time it is proper to observe1 
that  some times the original           
acquisition may have been made by a     
people or  their sovereign1 in such a   
manner as to give them or him not only  
those  pre-eminent rights which         
constitute prerogative1 but also the    
full  title of property4    ,and this   
property again may be divided into      
smaller grants1 and those  again        
subdivided into other portions1 to be   
held as dependent upon the  original    

grantor1 the ,sovereign1 or the ,lord4  
,though the land may not  be held by    
base service1 or vassalage1 yet it is   
possessed by some  conditional tenure4  
,for things are occupied by many kinds  
of right2  among which may be reckoned  
the right of a person who expects       
property  to be left to him under the   
condition of a trust4 ,seneca says1 that
 an  owner's being debarred from selling
 his lands1 committing waste upon  them1
 or even making improvements1 is not to 
be taken as a proof that  the property  
is not his4 ,for that is a man's own1   
which he holds under  any certain       
conditions4 ,since then property        
distributed in the manner  above named  
is held of the sovereign1 or of some    
intermediate ,lord1 who  himself is     
tenant of the sovereign1 it follows that
 any thing which  wants an owner does   
not become the property of him1 who can 
first seize  it1 but reverts to the     
state or to the sovereign4              
,illustration3 ,,war    ,by ,gari       

,melchers--,from a panel painting in    
,library of ,congress4                  
,,chapter ,,iv4    ,,title ,,to ,,desert
 ,,land ,,by ,,occupancy1 ,,possession1 
,,and ,,prescription4      ,why         
,usucaption or ,prescription cannot     
subsist between independent             
,states1 and ,sovereigns--,long         
possession alleged as a ground      of  
right--,inquiry into the intentions of  
men1 which are not      to be judged of 
by words alone--,intention to be judged 
of by      acts--,intentions also to be 
judged of by omissions--,how far length 
of time1 silence1 and non-possession1   
may confirm the conjecture of      an   
abandoned right--,time immemorial       
generally thought to bar any            
claim--,what constitutes time           
immemorial--,objections to a presumed   
desertion of property1 considered       
without any conjecture1 time            
immemorial appears to transfer and      
constitute a property--,inquiry         
whether persons yet unborn may thus be  

deprived of their      right--,rules of 
civil law respecting ,usucaption and    
,prescription as      applied to the    
case of ,sovereign ,princes1 explained4 
,i4 ,a great difficulty arises here     
respecting the right to property  by    
uninterrupted possession for any certain
 time4 ,for though time is  the great   
agent1 by whose motion all legal        
concerns and rights may  be measured and
 determined1 yet it has no effectual    
power of itself  to create an express   
title to any property4 ,now those rights
 were  introduced by the civil law2 and 
it is not their long continuance1  but  
the express provisions of the municipal 
law1 which gives them  their validity4  
,they are of no force therefore1 in the 
opinion of  ,vasquez1 between two       
independent nations or sovereigns1 or   
between a  free nation and a sovereign3 
between a sovereign and an individual   
who  is not his subject1 or between two 
subjects belonging to different  kings  
or nations4 ,which indeed seems true2   

and is actually the case2  for such     
points relating to persons and things1  
are not left to  the law of nature1 but 
are settled by the respective laws of   
each  country4 ,as the unqualified      
admission of this principle would lead  
to  great inconvenience1 and prevent the
 disputes of kings and nations          
respecting the bounds of territory from 
ever being adjusted2 in order  to       
eradicate the seeds of perpetual warfare
 and confusion1 so repugnant  to the    
interests and feelings of every people2 
the settlement of such  boundaries is   
not left to the claims of prescriptive  
right2 but the  territories of each     
contending party are1 in general1       
expressly defined  by certain treaties4 
,,ii4 ,to disturb any one in the actual 
and long possession of territory1  has  
in all ages been considered as repugnant
 to the general interests  and feelings 
of mankind4 ,for we find in holy writ1  
that when the  ,king of the ,ammonites  
demanded the lands situated between the 

rivers  ,arnon and ,jabok1 and those    
extending from the deserts of ,arabia   
to the ,jordan1 ,jepthah opposed his    
pretentious by proving his own          
possession of the same for three hundred
 years1 and asked why he and  his       
ancestors had for so long a period      
neglected to make their claim4  ,and the
 ,lacedaemonians1 we are informed by    
,isocrates1 laid it down for  a certain 
rule admitted among all nations1 that   
the right to public  territory as well  
as to private property was so firmly    
established by  length of time1 that it 
could not be disturbed2 and upon this   
ground  they rejected the claim of those
 who demanded the restoration of        
,messena4    ,resting upon a right like 
this1 ,philip the ,second was induced to
  declare to ,titus ,quintius1 that he  
would restore the dominions which  he   
had subdued himself1 but would upon no  
consideration give up the  possessions  
which he had derived from his ancestors 
by a just and  hereditary title4        

,sulpitius1 speaking against ,antiochus1
 proved how  unjust it was in him to    
pretend1 that because the ,greek        
,nations in  ,asia had once been under  
the subjection of his forefathers1 he   
had a  right to revive those claims1 and
 to reduce them again to a state of     
servitude4 ,and upon this subject two   
historians1 ,tacitus and ,diodorus  may 
be referred to2 the former of whom calls
 such obsolete pretensions1  empty      
talking1 and the latter treats them as  
idle tales and fables4  ,with these     
opinions ,cicero1 in his #bnd book of   
,offices1 agrees1 asking  what justice  
there can be in depriving an owner of   
the land1 which he  has for many ages   
quietly possessed8    ,,iii4 ,can it be 
said1 in order to justify the           
disturbance of long  enjoyed            
possessions1 that the rightful owner    
,,intended to assert his  claim1 when he
 never manifested such intention by any 
outward visible  act8 ,the effect of    
right which depends upon a man's        

intentions can  never follow from a bare
 conjecture of his will1 unless he has  
declared  and proved it by some express 
and visible act4 ,for actions being the 
only evidence of intentions1 intentions 
can never of themselves  alone without  
such acts be the object of human laws4  
,no conjectures  indeed respecting the  
acts of the mind can be reduced to      
mathematical  certainty1 but only to the
 evidence of probability at the utmost4 
,for  men by their words may express    
intentions different from their real    
ones1 and by their acts counterfeit     
intentions which they have not4 ,the    
nature of human society1 however1       
requires that all acts of the mind1     
when sufficiently indicated1 should be  
followed by their due effects4          
,therefore the intention1 which has been
 sufficiently indicated1 is  taken for  
granted against him who gave such       
indication4    ,,iv4 ,but to proceed to 
proofs derived from actions4 ,a thing is
  understood to be abandoned1 when it is

 cast away2 except it be under          
particular circumstances1 as throwing   
goods overboard in a storm to  lighten a
 ship1 where the owner is not supposed  
to have abandoned all  intention of     
recovery1 should it ever be in his      
power4 ,again1 by giving  up or         
cancelling a promissory note1 a debt is 
deemed to be discharged4  ,paulus the   
,lawyer1 says1 a right to property may  
be renounced not only  by words1 but    
also by actions1 or any other indication
 of the will4  ,thus1 if an owner       
knowingly make a contract with any one  
who is in  possession1 treating him as  
if he were the rightful proprietor1 he  
is naturally supposed to have           
relinquished his own pretensions4 ,nor  
is there any reason1 why the same rule  
may not take place between  sovereign   
princes1 and independent states1 as     
between individuals4 ,in  the same      
manner1 a ,lord by granting certain     
privileges to his ,vassal1  which he    
could not legally enjoy without a       

release from his former  obligations1   
was supposed by such act to have given  
him his freedom4 ,a  power derived not  
from the civil law only1 but from the   
law of nature1  which allows every man  
to relinquish what is his own1 and from 
a  natural presumption that a person    
designed to do the act which he has     
given manifest proofs of his intention  
to do4 ,in this sense1 ,ulpian may  be  
rightly understood1 where he says1 that 
,,acceptilation or the verbal  discharge
 of a debt is founded upon the law of   
nations4    ,v4 ,even omissions1 taking 
all proper circumstances into           
consideration1  come under the          
cognizance of the law4 ,thus the person1
 who knowing  of an act1 and being      
present at the commission of it1 passes 
it over  in silence1 seems to give his  
consent to it2 this was admitted by  the
 ,mosaic ,law4 ,unless indeed it can be 
shewn that the same person  was hindered
 from speaking either by fear or some   
other pressing  circumstance4 ,thus a   

thing is accounted as lost when all hope
 of  recovering it is given up2 as for  
instance1 if a tame animal1 which was   
in our possession1 be seized and carried
 off by a wild beast4 ,goods too  lost  
by shipwreck1 ,ulpian says1 cease to be 
considered as our own1 not  immediately1
 but when they are lost beyond all      
possibility of being  reclaimed1 and    
when no proofs of the owner's intention 
to reclaim them  can be discovered4     
,now the case is altered1 if persons    
were sent to inquire after the  lost    
goods1 or property1 and a reward was    
promised to the finder4 ,but  if a      
person knows his property to be in the  
possession of another1 and  allows it to
 remain so for a length of time1 without
 asserting his  claim1 unless there     
appear sufficient reasons for his       
silence1 he is  construed to have       
entirely abandoned all pretensions to   
the same4 ,and  to the same purpose he  
has said elsewhere1 that a house is     
looked upon  to be abandoned on account 

of the long silence of the proprietor4  
,the ,emperor ,antoninus ,pius1 in one  
of his rescripts1 said there was but    
little justice in claiming interest upon
 money after a long period2 for  the    
length of time elapsed was an indication
 that the debtor had been  excused from 
payment1 from some motive of kindness4  
,there appears something similar to this
 in the nature of custom4  ,for apart   
from the authority of civil laws1 which 
regulate the time  and manner of custom1
 and its introduction1 it may arise from
 the  indulgence of a sovereign to a    
conquered people4 ,but the length of    
time  from which custom derives the     
force of right1 is not defined1 but left
  to the arbitrary decision of what is  
sufficient to indicate general  consent4
 ,but for silence to be taken as a valid
 presumption that  property is deserted1
 two things are requisite3 it must be a 
silence  with a knowledge of the fact1  
and with a perfect freedom of will in   
the person concerned4 ,for a silence    

founded in ignorance can have no        
weight2 and where any other reason      
appears1 the presumption of free        
consent must fail4    ,,vi4 ,although   
the two requisites already named may be 
produced1 yet  other reasons have their 
weight2 among which length of time is   
not the  least important4 ,for in the   
first place1 it can scarcely happen1    
that  for a great length of time a thing
 belonging to any one should not  some  
way or other come to his knowledge1 as  
time might supply many  opportunities4  
,even if the civil law did not interpose
 to bar remote  pretensions1 the very   
nature of things would shew the         
reasonableness of  a shorter period of  
limitation being allowed to present than
 to absent  claimants4 ,if impressions  
of fear were pleaded by any one in      
excuse1  yet their influence would not  
be of perpetual duration1 and length  of
 time would unfold various means of     
security against such fears1  either    
from resources within himself1 or from  

the assistance of others4  ,escaping    
beyond the reach of him he dreaded1 he  
might protest against  his oppression1  
by appealing to proper judges and       
arbitrators4    ,,vii4 ,now as time     
immemorial1 considered in a moral light1
 seems to  have no bounds1 silence for  
such a length of time appears sufficient
  to establish the presumption that all 
claim to a thing is abandoned1  unless  
the strongest proofs to the contrary can
 be produced4 ,the most  able ,lawyers  
have properly observed1 that time       
according to the memory  of man is not  
an hundred years1 though probably it may
 not fall far  short of that space4 ,for
 a hundred years are the term beyond    
which  human existence seldom reaches2 a
 space1 which in general completes      
three ages or generations of men4 ,the  
,romans made this objection to          
,antiochus1 that he claimed cities1     
which neither he himself1 his  father1  
nor his grandfather had ever possessed4 
,,viii4 ,from the natural affection     

which all men have for themselves1  and 
their property1 an objection may be     
taken against the presumption  of any   
one's abandoning a thing which belongs  
to him1 and consequently  negative acts1
 even though confirmed by a long period 
of time1 are not  sufficient to         
establish the above named conjecture4   
,now considering the great importance   
deservedly attached to the  settlement  
of ,,crowns1 all conjectures favourable 
to the possessors  ought to be allowed4 
,for if ,aratus of ,sicyon thought it a 
hard case1  that ,,private possessions  
of fifty years' standing should be      
disturbed1  how much weightier is that  
maxim of ,augustus1 that it is the      
character  of a good man and a good     
subject to wish for no change in the    
present  government1 and1 ,,in ,,the    
,,words1 ,,which ,,thucydides ,,has     
,,assigned ,,to  ,,alcibiades1 to       
support the constitution1 under which he
 has been born8  ,but if no such rules  
in favour of possession could be        

adduced1 yet a  more weighty objection  
might be found against the presumption1 
drawn  from the inclination of every one
 to preserve his own right1 which is    
the improbability of one man's allowing 
another to usurp his property  for any  
length of time1 without declaring and   
asserting his own right4    ,,ix4       
,perhaps it may reasonably be said1 that
 this matter does not  rest upon        
presumption only1 but that it is a rule1
 introduced by the  voluntary law of    
,nations1 that uninterrupted possession1
 against which  no claim has been       
asserted1 will entirely transfer such   
property to the  actual possessor4 ,for 
it is most likely that all nations by   
consent  gave their sanction to such a  
practice1 as conducive to their common  
peace4 ,the term uninterrupted          
possession therefore has been very      
properly used to signify1 as ,sulpitius 
says in ,livy1 that which has  been held
 by one uniform tenour of right1 without
 intermission4 ,or as  the same author1 

in another place1 calls it1 perpetual   
possession1  that has never been called 
in question4 ,for a transitory          
possession  creates no title4 ,and it   
was this exception which the ,numidians 
had  urged against the ,carthaginians1  
alleging that as opportunity offered1   
sometimes the ,kings of the ,numidians  
had appropriated to themselves the      
disputed possessions1 which had always  
remained in the hands of the  stronger  
party4    ,x4 ,but here another         
question1 and that of considerable      
difficulty1  arises1 which is1 to       
decide1 whether1 by this desertion1     
persons yet  unborn may be deprived of  
their rights4 ,if we maintain that they 
,,may ,,not1 the rule already           
established would be of no avail towards
  settling the tranquillity of kingdoms1
 and security of property4 ,for  in most
 things some thing is due to the        
interests of posterity4 ,but if  we     
affirm that they ,,may1 it then seems   
wonderful that silence should  prejudice

 the rights of those1 who were unable to
 speak1 before they  had any existence1 
and that the act of ,,others should     
operate to their  injury4 ,to clear up  
this point1 we must observe that no     
rights can  belong to a person before he
 has any existence1 as1 in the language 
of  the schools1 there can be no        
accident without a substance4 ,wherefore
  if a ,prince1 from urgent motives of  
policy1 and for the advantage of  his   
own native dominions1 and subjects1     
should decline to accept an  additional 
sovereignty1 or for the same reasons1   
should relinquish  that1 which he had   
already accepted1 he would not be       
charged with  injuring his heirs and    
successors1 then unborn1 who could have 
no  rights before they had a natural    
existence4    ,now as a sovereign may   
,,expressly declare a change of his will
  respecting such dominions1 so that    
change may1 in certain cases1 be        
implied without such declaration4    ,in
 consequence of such a change either    

expressed or implied1 before the  rights
 of heirs and successors can be supposed
 to have any existence1  the possession 
may be considered as entirely abandoned4
 ,the case here  has been considered    
according to the ,,law ,,of ,,nature3   
for the civil  law1 among other         
fictions1 introduced that of the law's  
personating  those1 who are not yet in  
being1 and so preventing any occupancy  
from  taking place to their prejudice2 a
 regulation of law established upon  no 
slight grounds in order to preserve     
estates in families1 although  every    
means of ,,perpetuating property to     
individuals1 which prevents  its        
transfer from hand to hand1 may in some 
measure be detrimental to  the public   
interest4 ,from whence it is a received 
opinion1 that length  of time will give 
a property in those fees1 which were    
originally  conveyed1 not by right of   
succession1 but by virtue of primitive  
investiture4 ,covarruvias1 a lawyer of  
great judgment1 supports this  opinion  

with the strongest arguments in favour  
of primogeniture1 and  applies it to    
estates left in trust4 ,for nothing can 
prevent the civil  law from instituting 
a right1 which1 though it cannot be     
lawfully  alienated by the act of one   
party without consent of the other1 yet1
 to  avoid uncertainty in the tenure of 
present proprietors1 may be lost by     
neglect of claim for a length of time4  
,still the parties thus deprived  may   
maintain a personal action against      
those1 or their heirs1 through  whose   
neglect their right has been forfeited4 
,,xi4 ,it is an inquiry of importance   
whether the law of usucaption and       
prescription1 if it prevail in a        
prince's dominions1 can be applied to   
the tenure of the crown1 and all its    
prerogatives4 ,many legal writers1  who 
have treated of the nature of sovereign 
power according to the  principles of   
the ,roman civil law1 seem to affirm    
that it may be so  applied4 ,but this is
 an opinion to which we cannot accede in

 its full  extent4 ,for to make a law   
binding upon any one1 it is requisite   
that  the legislator should possess both
 power and will4 ,a legislator is not   
bound by his law1 as by the irrevocable 
and unchangeable controul of  a         
superior4 ,but occasions may arise that 
will demand an alteration  or even a    
repeal of the law which he has made4    
,yet a legislator may  be bound by his  
own law1 not directly as a legislator1  
but as an  individual forming part of   
the community3 and that too according to
  natural equity1 which requires that   
all the component parts should bear  a  
reference to the whole4 ,we find in holy
 writ1 this rule observed by  ,saul in  
the beginning of his reign4    ,now that
 rule does not take place here4 ,for we 
are considering the  lawgiver1 not as a 
part but as the ,,representative and    
,,sovereign of the  whole community4    
,nor indeed can any such intention in   
the lawgiver  be presumed to have       
existed4 ,for legislators are not       

supposed to  comprehend themselves      
within the rule of the law1 except where
 the  nature and subject of it are      
general4 ,but sovereignty is not to be  
compared with other things2 it so far   
surpasses them in the nobleness  of its 
end1 and the dignity of its nature4 ,nor
 is any civil law to  be found which    
either does1 or designs to comprehend   
sovereign power  within the rules of    
prescription4          ,,chapter        
,,ix4#bb    ,,in ,,what ,,cases         
,,jurisdiction ,,and ,,property ,,cease4
      ,jurisdiction and property cease1 
when the family of the owner has        
become extinct--,in what manner the     
rights of a people may become           
extinct--,a people becomes extinct when 
its essential parts are                 
destroyed--,a people does not become    
extinct by emigration--,the             
existence of separate states not        
destroyed by a federal union4      ,i4  
and ,,ii4 ,after the preceding inquiries
 into the manner in which  private      

property as well as sovereign power may 
be acquired and  transferred1 the       
manner1 in which they cease1 naturally  
comes next  under consideration4 ,it has
 been shewn before that the right to    
property may be lost by neglect2 for    
property can continue no longer  than   
while the will of ownership continues4  
,there is also another  manner in which 
property may cease to exist1 without any
 express or  implied alienation3 and    
that is where the family either of a    
sovereign1  or an owner1 becomes        
extinct1 a contingency for which        
provision must  be made somewhat similar
 to a succession to the property of one 
who  dies intestate4 ,wherefore if any  
one die1 without any declaration of  his
 will1 and have no relations by blood1  
all the right1 which he had1  becomes   
extinct1 and reverts1 if a sovereign1 to
 the hands of the  nation1 except where 
express provisions of law have been made
 to the  contrary4    ,,iii4 ,the same  
mode of reasoning applies to a nation4  

,isocrates1 and  after him the ,emperor 
,julian1 has said that states are       
immortal1 or  may be so4 ,for a people  
is one of that kind of bodies which are 
formed  of distinct parts1 following    
each other in regular succession1 and   
supplying the place of the deceased4    
,this body goes under one name1         
forming1 as ,plutarch says1 one         
constitution2 or1 in the language  of   
,paulus the ,lawyer1 one spirit4 ,now   
the spirit or constitution in  a people 
is the full and perfect harmony of civil
 life1 from which  emanates the         
sovereign power1 the very soul of all   
government1 and1 as  ,seneca says1 the  
vital breath which so many thousands    
draw4    ,these artificial bodies bear a
 close resemblance to the natural body1 
which1 notwithstanding the alteration of
 its component particles1  loses not its
 identity1 so long as the general form  
remains4 ,and  therefore in the passage 
of ,seneca1 where he says1 that no one  
is the  same in his old age that he was 

in his youth1 he means only as to       
natural substance4 ,in the same manner  
,heraclitus1 as cited by ,plato  in     
,cratylus1 and ,seneca in the place     
already quoted1 has said1 that  we      
cannot descend ,,twice into the same    
river4 ,but ,seneca afterwards  corrects
 himself1 adding1 that the river retains
 its name1 though the  watery particles 
of which it is composed are perpetually 
changing4  ,so ,aristotle1 too1 in      
comparing nations to rivers1 has said   
that the  rivers are always called by   
the same name1 though their several     
parts  are fluctuating every moment4    
,nor is it the name alone which         
continues1  but that principle also     
which ,conon calls the constitutional   
system  of the body1 and ,philo the     
spirit1 that holds it together4 ,so that
 a  people1 as ,alphenus and ,plutarch1 
in speaking of the late1 but unerring   
approach of divine vengeance1 maintain1 
though not one of its members  of a     
former period be now living1 is the same

 at present that it was  a hundred years
 ago1 as long as the spirit1 which first
 framed and  afterwards kept the body   
together1 preserves its identity4       
,hence has originated the custom1 in    
addressing a people1 of ascribing  to   
them1 who are now living1 what happened 
to the same people many ages  before2 as
 may be seen both in profane historians1
 and in the books of  holy writ4 ,so in 
,tacitus1 ,antony the ,first serving    
under ,vespasian1  reminds the soldiers 
of the third legion of what they had    
done in  former times1 how under ,mark  
,antony they had beaten the ,parthians1 
and  under ,corbulo the ,armenians4     
,there was more of prejudice1 therefore1
  than truth in the reproach1 which     
,piso cast upon the ,athenians of his   
own time1 refusing to consider them as  
,athenians since they had become        
extinct by so many disasters1 and were  
nothing more than a base mixture  of all
 nations of the earth4 ,we say there was
 more of prejudice than  truth in this  

reproach4 ,for though such a mixture    
might diminish the  dignity1 it could   
not destroy the existence of a people4  
,nor was he  himself ignorant of this4  
,for he reproaches the ,athenians of his
  own day with their feeble efforts in  
former times against ,philip of         
,macedon1 and their ingratitude to their
 best friends4 ,now as a change  of its 
component parts cannot destroy the      
identity of a people1 not  even for a   
thousand years or more2 so neither can  
it be denied that a  people may lose its
 existence in two ways2 either by the   
extinction of  all its members1 or by   
the extinction of its form and spirit4  
,,iv4 ,a body is said to die1 when its  
essential parts1 and necessary  form of 
subsistence are destroyed4 ,to the      
former case may be referred  the        
instance of nations swallowed up by the 
sea1 as ,plato relates1 and  others whom
 ,tertullian mentions3 or if a people   
should be destroyed  by an earthquake1  
of which there are many instances in    

history1 or  should destroy themselves1 
as the ,sidonians and ,saguntines did4  
,we are  informed by ,pliny1 that in    
ancient ,latium1 fifty-three nations    
were  destroyed without a single trace  
of them remaining4    ,but what1 it may 
be said will be the case1 if out of such
 a nation so  few remain that they      
cannot form a people8 ,they will then   
retain that  property1 which they had   
before as private persons1 but not in a 
public  capacity4 ,the same is the case 
with every community4    ,v4 ,a people  
loses its form1 by losing all or some of
 those rights1  which it had in common2 
and this happens1 either when every     
individual  is reduced to slavery1 as   
the ,mycenaeans1 who were sold by the   
,argives2  the ,olynthians by ,philip1  
the ,thebans by ,alexander1 and the     
,brutians1  made public slaves by the   
,romans3 ,or when1 though they retain   
their  personal liberty1 they are       
deprived of the rights of sovereignty4  
,thus  ,livy informs us respecting      

,capua1 that the ,romans determined1    
though it  might be inhabited as a city1
 that there should be no municipal body1
  no senate1 no public council1 no      
magistrates1 but that deprived of       
political deliberation1 and sovereign   
authority1 the inhabitants should  be   
considered as a multitude2 subject to   
the jurisdiction of a ,praefect  sent   
from ,rome4 ,therefore ,cicero1 in his  
first speech against ,rullus1  says that
 there was no image of a republic left  
at ,capua4 ,the same  may be said of    
nations reduced to the form of          
,provinces1 and of those  subjugated by 
another power2 as ,byzantium was to     
,perinthus1 by the  ,emperor ,severus1  
and ,antioch to ,laodicea1 by           
,theodosius4    ,,vi4 ,but if a nation  
should emigrate1 either spontaneously1  
on account  of scarcity or any other    
calamity1 or if by compulsion1 which was
 the  case with the people of ,carthage 
in the third ,punic war1 while she      
retains her form1 she does not cease to 

be a people2 and still less so1  if only
 the walls of her cities be destroyed1  
and therefore when the  ,lacedaemonians 
refused to admit the ,messenians to     
swear to the peace of  ,greece1 because 
the walls of their city were destroyed1 
it was carried  against them in the     
,general ,assembly of the ,allies4      
,nor does it make any difference in the 
argument1 whatever the form of          
government may be1 whether regal1       
aristocratical1 or democratical4 ,the   
,roman people for instance was the same1
 whether under kings1 consuls1  or      
emperors4 ,even indeed under the most   
absolute form1 the people is  the same  
that it was in its independent state1   
while the king governs  it as head of   
that people1 and not of any other4 ,for 
the sovereignty  which resides in the   
king as the head1 resides in the people 
likewise  as the body of which he is the
 head2 and therefore in an elective     
government1 if the king or the royal    
family should become extinct1 the       

rights of sovereignty1 as it has been   
already shewn1 would revert to  the     
people4    ,nor is this argument        
overthrown by the objection drawn from  
,aristotle1  who says that1 if the form 
of government is changed1 the state no  
longer continues to be the same1 as the 
harmony of a piece of music is  entirely
 changed by a transition from the ,doric
 to the ,phrygian measure4    ,now it is
 to be observed1 that an artificial     
system may possess many  different      
forms1 as in an army under one supreme  
commander there are  many subordinate   
parts1 and inferior powers1 while in the
 operations  of the field it appears but
 as one body4 ,in same manner1 the union
 of  the legislative and executive in a 
state gives it the appearance of  one   
form1 while the distinction between     
subject and sovereign1 and  their still 
mutual relation give it another4 ,the   
executive power is the  politician's    
concern2 the judicial1 the lawyer's4    
,nor did this escape  the notice of     

,aristotle4 ,for he says it belongs to a
 science different  from that of        
politics to determine whether1 under a  
change in the form  of government1 the  
debts contracted under the old system   
ought to be  discharged by the members  
of the new4 ,he does this1 to avoid the 
fault  which he blames in many other    
writers1 of making digressions from one 
subject to another4    ,it is evident   
that a state1 which from a commonwealth 
has become a  regal government1 is      
answerable for the debts incurred before
 that  change4 ,for it is the same      
people1 possessing all the same rights1 
and powers1 which are now exercised in a
 different manner1 being no  longer     
vested in the body1 but in the head4    
,this furnishes a ready  answer to a    
question some times asked1 which is1    
what place in general  assemblies of    
different states1 ought to be assigned  
to a sovereign1  to whom the people of a
 commonwealth have transferred all their
 power8  ,undoubtedly the same place    

which that people or their              
representatives  had occupied before in 
such councils4 ,thus in the             
,amphictyonic council1  ,philip of      
,macedon succeeded to the place of the  
,phocensians4 ,so1 on the  other hand1  
the people of a commonwealth occupy the 
place assigned to  sovereigns4          
,,viii4#bc ,whenever two nations become 
united1 their rights1 as distinct       
states1 will not be lost1 but will be   
communicated to each other4 ,thus  the  
rights of the ,albans in the first      
place1 and afterwards those  of the     
,sabines1 as we are informed by ,livy1  
were transferred to the  ,romans1 and   
they became one government4 ,the same   
reasoning holds good  respecting states1
 which are joined1 not by a federal     
,,union1 but by  having one sovereign   
for their head4    ,,ix4 ,on the other  
hand1 it may happen that a nation1      
originally forming  but one state1 may  
be divided1 either by mutual consent1 or
 by the  fate of war2 as the body of the

 ,persian ,empire was divided among the 
successors of ,alexander4 ,when this is 
the case1 many sovereign powers  arise  
in the place of one1 each enjoying its  
independent rights1  whatever belonged  
to the original state1 in common1 must  
either  continue to be governed as a    
common concern1 or be divided in        
equitable  proportions4    ,to this head
 may be referred the voluntary          
separation1 which takes  place when a   
nation sends out colonies4 ,for thus a  
new people as it  were is formed1       
enjoying their own rights2 and as       
,thucydides says1 sent  out not upon    
terms of slavery1 but equality1 yet     
still owing respect  and obedience to   
their mother-country4 ,the same writer1 
speaking of  the second colony sent by  
the ,corinthians to ,epidamnus1 says1   
they  gave public notice that such as   
were willing to go should enjoy equal   
privileges with those that staid at     
home4          ,,chapter ,x4    ,,the   
,,obligation ,,arising ,,from           

,,property4      ,origin and nature of  
the obligation to restore what belongs  
to      another--,obligation to restore 
to the rightful owner the profits       
that have accrued from the unjust       
possession of his personal or      real 
property--,a bona-fide possessor not    
bound to restitution if      the thing  
has perished--,such bona-fide possessor 
bound to the      restitution of the    
profits remaining in his hands--,bound  
to make      reparation for the         
consumption occasioned by his           
possession--,a      possessor not bound 
to make a recompence for a gift1 with an
      exception--,the sale of any thing 
that has been bought1 obliges the       
seller to make restitution1 with a      
certain exception--,in what cases      a
 bona-fide purchaser of what belongs to 
another may retain the      price1 or a 
part of it--,he who has purchased a     
thing of one who is      not the real   
owner1 cannot return it to that         
seller--,the possessor      of a thing  

whose real owner is unknown1 not bound  
to give it up      to any one--,a person
 not bound to restore money received    
upon a      dishonest account1 or for   
service done--,opinion that the property
      of things valued by weight1 number
 and measure1 may be transferred        
without consent of the owner1 refuted4  
,i4 ,having explained in the preceding  
part the nature and rights of  property1
 it remains for us to consider the      
obligation which we incur  from thence4 
,now this obligation proceeds from      
things either in existence1 or not  in  
existence1 comprehending1 under the name
 of things1 the right also  over        
persons1 as far as is beneficial to us4 
,the obligation1 arising  from things in
 existence1 binds the person1 who has   
our property in  his power1 to do all he
 can to put us again into possession of 
it4 ,we  have said to do all he can3 for
 no one is bound to an impossibility1   
nor to procure the restoration of a     
thing at his own expence4 ,but he is    

obliged to make every discovery which   
may enable another to recover his  own  
property4 ,for as in a community of     
things1 it was necessary that a  certain
 equality should be preserved1 to       
prevent one man from having an  undue   
share of the common stock2 so upon the  
introduction of property1  it became1 as
 it were1 a kind of established rule of 
society among the  owners1 that the     
person1 who had in his possession       
anything belonging  to another should   
restore it to the lawful proprietor4    
,for if the right  of property extended 
no farther than barely to enable the    
owner to  make a demand of restitution  
without ,,enforcing it by ,,legal       
,,process1  it would rest upon a very   
weak foundation1 and scarce be worth the
  holding4 ,nor does it make any        
difference1 whether a person has fairly 
or fraudulently obtained possession of a
 thing not belonging to him4  ,for he is
 equally bound to restore it1 both by   
the positive obligations  of law1 and by

 the principles of natural justice4 ,the
 ,lacedaemonians  had nominally cleared 
themselves of the crime1 by condemning  
,phaebidas1  who1 in violation of their 
treaty with the ,thebans1 had seized    
upon  the citadel of ,cadmea1 but in    
reality they where guilty of injustice1 
by retaining the possession4 ,and       
,xenophon has remarked that1 such a     
singular act of injustice was punished  
by the signal providence of  ,god4 ,for 
the same reason ,marcus ,crassus1 and   
,quintus ,hortensius1 are  blamed for   
having retained part of an inheritance  
left them by a will1  the making of     
which had been procured upon false      
pretences1 but in the  management of    
which they had no share4 ,cicero blames 
them1 because it  is understood to be   
settled by general agreement1 that all  
men are to  restore what they are       
possessed of1 if another is proved to be
 the  rightful owner4 ,a principle by   
which property is firmly secured1 and   
upon which all special contracts are    

founded1 and any exceptions to  this    
rule1 contained in them1 must be        
expressly named as such4 ,this  throws  
light upon the passage of ,tryphoninus4 
,if a robber1 says he1  has spoiled me  
of my goods1 which he has deposited with
 ,seius1 who  knows nothing of the fact2
 the question is1 whether he ought to   
restore  them to the robber or to me4   
,if we consider him as giving and       
receiving  on his own account1 ,,good   
,,faith requires that the deposit should
 be  restored to him who gave it4 ,if we
 consider the equity of the whole  case1
 including all the persons concerned in 
the transaction1 the goods  should be   
restored to me1 as the person unjustly  
deprived of them4  ,and he properly     
adds1 ,i prove it to be strict justice  
to assign every  one his due1 without   
infringing on the more just claims of   
another4  ,now it has been shewn that   
the justest title on which any one can  
claim1 is that which is coaeval with the
 property itself4 ,from whence  the     

principle laid down by ,tryphoninus1    
that if any one unknowingly  received   
goods as a deposit1 and afterwards      
discovers them to be his  own1 he is not
 bound to restore them4 ,and the        
question1 which the same  author puts a 
little before respecting goods deposited
 by one1 whose  property had been       
confiscated1 is better settled by this  
principle1  than by what he says        
elsewhere on the utility of punishment4 
,for as to  the nature of property1 it  
makes no difference1 whether it arises  
from  the law of nations1 or from the   
civil law2 as it always carries with it 
peculiar qualities1 among which may be  
reckoned the obligation1 under  which   
every possessor lies to restore a thing 
to its rightful owner4  ,and hence it is
 said by ,martian1 that according to the
 law of nations1  restitution may be    
demanded1 of those1 who have no legal   
title to the  possession4 ,from the same
 origin springs the maxim of ,ulpian1   
that  whoever has found a thing         

belonging to another1 is bound to       
restore it1  even without claiming or   
receiving a reward for finding it4 ,the 
profits  also are to be restored1 with a
 deduction only of reasonable charges4  
,,ii4 ,respecting things1 non-existent1 
or whose identity cannot be             
ascertained1 is a principle generally   
received among mankind1 that  the       
person1 who has become richer by that   
property1 of which the  rightful owner  
has been dispossessed1 is bound to make 
him reparation  in proportion to the    
benefit1 which he has derived from his  
property4  ,for the true proprietor may 
be justly said to have lost1 what ,,he  
has  gained4 ,now the very introduction 
of property was intended to preserve    
that equality1 which assigns to every   
one his own4    ,cicero has said1 that  
it is contrary to natural justice1 for  
one man  to improve his own advantage at
 the expence of another1 and in another 
place1 that nature does not allow us to 
increase our resources1 riches1  and    

power1 from the spoils of others4 ,there
 is so much of equity in  this saying1  
that many legal writers have made it the
 basis of their  definitions1 to supply 
the deficiency of the strict letter of  
the law1  always appealing to equity as 
the most sure and clear rule of action4 
,if any one employ a slave1 as his      
factor1 to trade for him1 he is bound   
by the acts of that factor1 unless he   
has previously given notice that  he is 
not to be trusted4 ,but even if such    
notice has been given1 where  the factor
 has a property in the concern1 or the  
master a profit1 the  notice shall be   
deemed a fraud4 ,for1 says ,proculus1   
whoever makes  an advantage from the    
loss of another is guilty of a fraud2 a 
term  implying every thing repugnant to 
natural justice and equity4 ,he1 who1   
at the instance of a mother1 has put in 
bail for her son's advocate1  has no    
action on the case against the advocate 
for what is called an  assumpsit or     
undertaking4 ,for it was not strictly   

his business1 which  the advocate       
managed2 the bail was put in at the     
,,instance of the  ,,mother4 ,yet       
according to the opinion of ,papinian1  
an action on the  case for the          
assumpsit1 or undertaking will lie      
against the advocate1  because it is    
with the bailor's money that he is      
discharged from the  risque of the      
costs4    ,so a wife who has given to   
her husband money1 which she may by law 
demand again1 has a personal action of  
recovery against him1 or an  indirect   
action upon any thing purchased with the
 money4 ,because1 as  ,ulpian says1 it  
cannot be denied1 that the husband has  
been richer by  it1 and the question is1
 whether what he possesses belongs to   
his wife8    ,if ,i have been robbed by 
my slave1 and any one has spent the     
money  under the supposition that it was
 the slave's own property1 an action    
may be maintained against that person1  
as being unjustly in possession  of my  
property4 ,according to the ,roman laws1

 minors are not answerable  for money   
borrowed4 ,yet if a minor has become    
richer by the loan1 an  indirect action 
will lie against him1 or1 if anything1  
belonging to  another1 has been pawned  
and sold by a creditor1 the debtor      
should be  released from the debt in    
proportion to what the creditor has     
received4  ,because1 says ,tryphoninus1 
whatever the obligation may be1 since   
the  money raised accrued from the debt1
 it is more reasonable that it  should  
redound to the benefit of the debtor    
than the creditor4 ,but  the debtor is  
bound to indemnify the purchaser1 for it
 would not be  reasonable that he should
 derive gain from another's loss4 ,now  
if a  creditor1 holding an estate in    
pledge for his money1 has received from 
it rents and profits amounting to more  
than his real debt2 all above  that     
shall be considered as a discharge of so
 much of the principal4    ,but to      
proceed with other cases4 ,if you have  
treated with my debtor1  not supposing  

him to be indebted to me1 but to another
 person1 and have  borrowed my money of 
him1 you are obliged to pay me2 not     
because ,i have  lent you money2 for    
that could only be done by mutual       
consent2 but  because it is reasonable  
and just1 that my money1 which has come 
into  your possession1 should be        
restored to me4    ,the later writers on
 the law have adduced this kind of      
reasoning in  support of similar cases4 
,thus1 for instance1 if the goods of any
 one1  who has been cast through        
default1 have been sold1 if he can make 
any  good exception to the decision1 he 
shall be entitled to the money  arising 
from such sale4 ,again1 when any one has
 lent money to a father  for the        
maintenance of his son2 if the father   
should become insolvent1  he may bring  
an action against the son1 provided the 
son is possessed  of any thing through  
his mother4    ,these two rules being   
perfectly understood1 there will be no  
difficulty  in answering the questions  

often proposed by ,lawyers and          
,theologians on  such subjects4         
,,iii4 ,in the first place it appears1  
that a person who has obtained          
possession of goods by fair means1 is   
not bound to restitution1  if those     
goods have perished1 because they are no
 longer in his  possession1 nor has he  
derived any advantage from them4 ,the   
case of  unlawful possession which is   
left to the punishment of the law is    
entirely out of the question4    ,,iv4  
,in the next place a bona-fide possessor
 of a thing is bound to a  restitution  
of the fruits or profits thereof        
remaining in his hand4 ,the  ,,fruits or
 ,,produce of the ,,thing ,,itself are  
here meant4 ,for the benefit  derived   
from a thing owing to the industry      
bestowed upon it by the  occupier       
thereof1 cannot belong to the thing     
itself1 though originally  proceeding   
from it4 ,the reason of this obligation 
arises from the  institution of         
property4 ,for the true proprietor of a 

possession is  naturally proprietor of  
the fruits or produce of the same4      
,v4 ,such possessor in the third place  
is bound to make restitution of  the    
thing1 or reparation for the consumption
 of it occasioned by his  possession4   
,for he is conceived to have been made  
the richer thereby4  ,thus ,caligula is 
praised for having1 in the beginning of 
his reign1  restored to different       
,princes along with their crowns1 the   
intermediate  revenues of their         
kingdoms4    ,,vi4 ,in the fourth place1
 an occupier of lands1 for instance1 is 
not  bound to make a compensation for   
the produce thereof which he has not    
reaped4 ,for if dispossessed1 he has    
neither the thing itself1 nor any  thing
 in the place of it4    ,,vii4 ,in the  
fifth place1 a possessor who has granted
 to a third person  a thing of which a  
gift had been made to himself1 is not   
bound to  make a recompence to the      
original giver1 unless he received it   
under  stipulation1 that if he granted  

it to a third person1 and thereby       
spared his own property1 he should make 
a return proportionable to such  gain4  
,,viii4 ,sixthly1 if any one has sold a 
thing which he has bought1 he is  not   
bound to restitution of more than the   
surplus arising from the  sale4 ,but if 
he had received it under stipulation to 
sell1 he is bound  to make restitution  
of the whole price1 unless1 in          
transacting the sale  he has incurred an
 expence1 amounting to the whole price1 
which he  would not otherwise have      
done4#bd    ,,ix4 ,seventhly1 a         
bona-fide purchaser of what belongs to  
another is  obliged to make restitution 
to the real owner1 nor can the price he 
paid be recovered4 ,to this however     
there seems to be one exception1  which 
is1 where the owner could not have      
recovered possession without  some      
expence2 so for instance1 if his        
property were in the hands of  pirates4 
,for then a deduction may be made of as 
much as the owner would  willingly have 

spent in the recovery4 ,because the     
actual possession1  especially of a     
thing difficult to be recovered1 may be 
ascertained1  and the owner deemed so   
much the richer by such recovery4 ,and  
therefore1 though in the ordinary course
 of law1 the purchase of what  belongs  
to one's self can never constitute a    
bargain1 yet ,paulus the  ,lawyer says1 
that it may do so1 if it has been       
originally agreed that  we are to pay   
for the re-possession of what another   
has belonging to us  in his hands4      
,nor is it in the least material1       
whether a thing has been bought with  an
 intention of restoring it to the owner2
 in which case1 some say1  that an      
action for costs may be maintained1     
whilst others deny it4 ,for  an action  
on the case1 to recover a compensation  
for business done  arises from the      
artificial rules of ,,civil ,,law1 and  
not solely from  the simple dictates of 
natural justice2 which are here the     
principal  subject of inquiry4    ,not  

unlike to this is what ,ulpian has      
written on funeral expences1 in  which  
he says1 that a compassionate judge will
 not rigidly regard the  bare labour    
that has been given1 but allowing some  
relaxation in favour  of equity1 will   
shew indulgence to the feelings of human
 nature4    ,the same writer1 in another
 place has said1 that if any one has    
transacted my business1 not out of      
regard to me1 but for his own  interest1
 and has incurred expence on my account1
 he may bring an  action on the case1   
not for what he has given1 but for what 
,i have  gained by his labour and       
expence4    ,in the same manner1 owners1
 by throwing whose goods overboard a    
ship  has been lightened1 may recover a 
compensation from others whose goods    
were by that means saved4 ,because those
 persons are considered so much  the    
richer by the preservation of what would
 otherwise have been lost4    ,x4       
,eighthly1 the person that has bought a 
thing of one1 who is not the  owner1    

cannot return it to that seller2 because
 from the time that the  thing came into
 his possession1 he incurred an         
obligation to restore it  to the lawful 
owner4    ,,xi4 ,again1 if any one is in
 possession of a thing1 whose real owner
 is  unknown1 he is not naturally1 and  
necessarily bound to give it to the     
poor2 although this may be considered as
 an act of piety1 a custom very         
properly established in some places4    
,the reason of which is founded  on the 
introduction of property4 ,for1 in      
consequence of that1 no one  except the 
real owner1 can claim a right to any    
thing4 ,to the person  therefore1 who   
cannot discover such an owner1 it is the
 same as if  there really were none4    
,,xii4 ,lastly1 a person is not obliged 
by the law of nature to restore  money1 
which has been received upon a dishonest
 account1 or for the  performance of a  
legal act1 to which that person was of  
himself  bound4 ,however it is not      
without reason that some laws have      

required  restitution in such cases4    
,the reason of this is1 because no one  
is  bound to part with any thing unless 
it belongs to another4 ,but here the    
property is voluntarily transferred by  
the first owner4    ,the case will be   
altered1 if there be any thing          
iniquitous in the  manner of acquiring  
the thing2 as if1 for instance1 it be   
gained  by extortion4 ,this gives rise  
to the obligation of submitting to      
penalties1 which is not immediately to  
the present purpose4    ,,xiii4 ,the    
present subject may be concluded with a 
refutation of  ,medina's false opinion1 
that a property in things1 belonging to 
another1 may be transferred without     
consent of the owner2 provided  the     
things are such as are usually valued by
 weight1 number and  measure4 ,because  
things of that nature can be repaid in  
kind1 or by an  equivalent4 ,but this is
 only1 where such a mode of repayment   
has been  previously agreed upon2 or    
where it is understood to be established

 by  law or custom2 or where the thing  
itself has been consumed1 and cannot  be
 identically restored4 ,but without such
 consent1 either expressed  or implied1 
or excepting the impossibility just     
mentioned1 the things  themselves must  
be restored4          ,,chapter ,,xi4   
,,on ,,promises4      ,opinion1 that the
 obligation to fulfil promises is not   
enacted      by the law of nature1      
refuted--,a bare assertion not          
binding--,a      promiser bound to      
fulfil his engagements1 though no right 
to exact      the performance of them1  
is thereby conveyed to another--,what   
kind of promise gives such right--,the  
promiser should possess      the right  
use of reason--,difference between      
natural and civil      law with respect 
to minors--,promises made under an      
error1 or      extorted by fear1 how far
 binding--,promises valid1 if in the    
power of the promiser to perform        
them--,promise made upon unlawful       
considerations1 whether binding--,manner

 of confirming the promises      made by
 others1 and the conduct of ,ambassadors
 who exceed their      instructions1    
considered--,owners of ships1 how far   
bound by the      acts of the masters of
 such vessels1 and merchants by the acts
      of their factors--,acceptance     
requisite to give validity to a         
promise--,promises sometimes            
revokable--,the power of revoking a     
promise1 explained by                   
distinctions--,burdensome conditions    
annexed      to a promise--,means of    
confirming invalid promises--,natural   
obligation arising from engagements made
 for others4      ,i4 ,the course of the
 subject next leads to an inquiry into  
the  obligation of promises4#be ,where  
the first object1 that presents  itself1
 is the opinion of ,franciscus          
,connanus1 a man of no ordinary         
learning4 ,he maintains an opinion that 
the law of nature and of nations  does  
not enforce the fulfilment of those     
agreements1 which do not  include an    

express contract4#bf ,yet the fulfilment
 of them is right1  in cases1 where1    
even without a promise1 the performance 
would be  consonant to virtue and       
equity4 ,in support of his opinion1 he  
brings  not only the sayings of         
,lawyers1 but likewise the following    
reasons4 ,he  says1 that the person1 who
 makes1 and he who believes1 a rash     
promise1  are equally to blame4 ,for the
 fortunes of all men would be in        
imminent  danger1 if they were bound by 
such promises1 which often proceed from 
motives of vanity rather than from a    
settled deliberation1 and are  the      
result of a light and inconsiderate     
mind4 ,lastly1 the performance  of      
whatever is any way just in itself1     
ought to be left to the free  will of   
every one1 and not exacted according to 
the rigid rules of  necessity4 ,he says 
that it is shameful not to fulfil       
promises2 not  because it is unjust1 but
 because it argues a levity in making   
them4    ,in support of his opinion1 he 

appeals also to the testimony of ,tully1
  who has said1 that those promises are 
not to be kept1 which are  prejudicial  
to the person to whom they are made1    
nor1 if they are  more detrimental to   
the giver than beneficial to the        
receiver4 ,but  if the performance of an
 engagement is begun upon the strength  
of a  promise1 but not finished1 he does
 not require a complete fulfilment  of  
the promise1 but only some compensation 
to the party for the  disappointment4   
,agreements1 he continues1 have no      
intrinsic force of  obligation1 but only
 what they derive from the express      
contracts1 in  which they are included1 
or to which they are annexed1 or from   
the  delivery of the thing promised4    
,from whence arise actions1 on the one  
side1 and exceptions on the other1 and  
bars to all claims of recovery4    ,but 
it is through favour of the laws alone1 
which give the efficacy  of obligation  
to what is only fair and equitable in   
itself1 that  obligatory agreements1    

such as express covenants and other     
things of  that kind1 derive their      
force4    ,now there is no consistency  
in this opinion1 taken in the general   
sense  intended by its author4 ,for in  
the first place it immediately follows  
from thence1 that there is no force in  
treaties between kings and  different   
nations1 till some part of them be      
carried into execution1  especially in  
those places1 where no certain form of  
treaties or  compacts has been          
established4 ,but no just reason can be 
found1 why  laws1 which are a kind of   
general agreement among a people1 and   
indeed  are called so by ,aristotle1 and
 ,demosthenes1 should be able to give   
the  force of obligation to compacts1   
and why the will of an individual1      
doing every thing to bind himself1      
should not have the same power2         
especially where the civil law creates  
no impediment to it4 ,besides1  as it   
has been already said that the property 
of a thing may be  transferred1 where a 

sufficient indication of the will is    
given4 ,why  may we not then convey to  
another the right to claim a transfer of
 our  property to him1 or the fulfilment
 of our engagements1 as we have the     
same power over our actions1 as over our
 property8    ,this is an opinion       
confirmed by the wisdom of all ages4    
,for as it  is said by legal            
authorities1 that since nothing is so   
consonant to  natural justice1 as for   
the will of an owner1 freely            
transferring his  property to another1  
to be confirmed1 so nothing is more     
conducive to  good faith among men1 than
 a strict adherence to the engagements  
they  have made with each other4 ,thus a
 legal decision for the payment of      
money1 where no debt has been incurred1 
except by the verbal consent of  the    
party promising1 is thought conformable 
to natural justice4 ,paulus  the ,lawyer
 also says1 that the law of nature and  
the law of nations  agree in compelling 
a person1 who has received credit1 to   

payment4 ,in  this place the word1      
,,compelling1 signifies a moral         
obligation4 ,nor  can what ,connanus    
says be admitted1 which is1 that we are 
supposed to  have credit for a full     
performance of a promise1 where the     
engagement  has been in part fulfilled4 
,for ,paulus in this place is treating  
of an  action where nothing is due2     
which action is entirely void1 if money 
has been paid1 in any way1 whether      
according to the manner expressly       
stipulated1 or any other4 ,for the civil
 law1 in order to discourage  frequent  
causes of litigation1 does not interfere
 with those agreements  which are       
enforced by the law of nature and of    
nations4    ,tully1 in the first book of
 his ,offices1 assigns such force to the
  obligation of promises1 that he calls 
fidelity the foundation of  justice1    
which ,horace also styles the sister of 
justice1 and the  ,platonists often call
 justice1 ,,truth1 which ,apuleius has  
translated  ,,fidelity1 and ,simonides  

has defined justice to be not only      
returning  what one has received1 but   
also speaking the truth4    ,but to     
understand the matter fully1 we must    
carefully observe that  there are three 
different ways of speaking1 respecting  
things which  ,,are1 or which1 it is    
supposed1 ,,will be in our power4       
,,ii4 ,the first of these ways is1 where
 an assurance is given of future        
intentions1 and if the assurance be     
,,sincere at the time it is given1      
though it should not be carried into    
effect1 no blame is incurred1 as  it    
might afterwards not be found expedient4
 ,for the human mind has not  only a    
natural power1 but a right to change its
 purpose4 ,wherefore if  any blame      
attaches to a change of opinion1 or     
purpose1 it is not to be  imputed to the
 ,,bare ,,act ,,of ,,changing1 but to   
the ,,circumstances1 under  which it    
happens1 especially when the former     
resolution was the best4    ,,iii4 ,the 
second way is1 when future intentions   

are expressed by outward  acts and signs
 sufficient to indicate a resolution of 
abiding by  present assurances4 ,and    
these kind of promises may be called    
imperfect  obligations1 but conveying to
 the person to whom they are given no   
,,right to exact them4 ,for it happens  
in many cases that we may be under  an  
obligation of duty1 to the performance  
of which another has no right  to compel
 us4 ,for in this respect the duty of   
fidelity to promises1 is  like the      
duties of compassion and gratitude4 ,in 
such kinds of promises  therefore the   
person to whom they are made1 has no    
right1 by the law of  nature to possess 
himself of the effects of the promiser1 
as his own1  nor to ,,compel him to the 
performance of his promise4    ,,iv4    
,the third way is1 where such a         
determination is confirmed by  evident  
signs of an intention to convey a       
peculiar right to another1  which       
constitutes the perfect obligation of a 
promise1 and is attended  with          

consequences similar to an alienation of
 property4    ,there may be two kinds of
 alienation1 the one of our property1   
the  other of a certain portion of our  
liberty4 ,under those of the former     
kind we may class the promises of gifts1
 and under the latter the  promises of  
doing certain actions4 ,on this subject 
we are supplied  with noble arguments   
from the divine oracles1 which inform   
us1 that  ,god himself1 who can be      
limited by no established rules of law1 
would  act contrary to his own nature1  
if he did not perform his promises4     
,from whence it follows that the        
obligations to perform promises spring  
from the nature of that unchangeable    
justice1 which is an attribute of  ,god1
 and common to all who bear his image1  
in the use of reason4 ,to  the proofs of
 scripture here referred to1 we may add 
the judgment of  ,solomon1 ,my son if   
thou hast been surety for thy friend1   
thou hast  tied up thy hands to a       
stranger2 thou art ensnared by the words

 of thy  mouth1 then art thou taken by  
the words of thine own mouth4 ,hence a  
promise is called by the ,hebrews a bond
 or chain1 and is compared to a  vow4   
,eustathius in his notes on the second  
book of the ,iliad1 assigns a  similar  
origin to the word  hyposcheses or      
engagement4 ,for  he who has received   
the promise1 in some measure takes and  
holds the  person1 that has made the    
engagement4 ,a meaning not ill expressed
 by  ,ovid in the second book of his    
,metamorphoses1 where the promiser says 
to him1 to whom he had promised1 ,my    
word has become yours4    ,after knowing
 this1 there remains no difficulty in   
replying to the  arguments of ,connanus4
 ,for the expressions of the lawyers1   
respecting  ,,bare ,,promises1 refer    
only to what was introduced by the      
,roman laws1  which have made a ,,formal
 ,,stipulation the undoubted sign of a  
deliberate  mind4    ,nor can it be     
denied that there were similar laws     
among other nations4  ,for ,seneca1     

speaking of human laws1 and promises    
made without proper  solemnities1 says1 
,what law1 of any country1 we may add1  
obliges us  to the performance of bare  
promises8 ,but there may naturally be   
other  signs of a deliberate mind1      
besides a formal stipulation1 or any    
other  similar act which the civil law  
requires1 to afford grounds for a legal 
remedy4 ,but what is not done with a    
deliberate mind1 we are inclined  to    
believe does not come under the class of
 perfect obligations2 as  ,theophrastus 
has observed in his book on laws4 ,nay1 
even what is done  with a deliberate    
mind1 but not with an intention of      
conceding our  own right to another2    
though it cannot give any one a natural 
right  of exacting its fulfilment1 yet  
it creates an obligation not only in    
point of duty1 but in point of moral    
necessity4 ,the next matter to be       
considered is1 what are the requisites  
to constitute a perfect promise4    ,v4 
,the use of reason is the first         

requisite to constitute the  obligation 
of a promise1 which ideots1 madmen1 and 
infants are  consequently incapable of  
making4 ,the case of minors is somewhat 
different4 ,for although they may not   
have a sound judgment1 yet it is  not a 
permanent defect1 nor sufficient of     
itself to invalidate all  their acts4   
,it cannot be certainly defined at what 
period of life  reason commences4 ,but  
it must be judged of from daily actions1
 or from  the particular customs of each
 country4 ,amongst the ,hebrews a       
promise  made by a male at the age of   
thirteen1 and by a female at the age of 
twelve1 was valid4 ,in other nations1   
the civil laws1 acting upon just        
motives1 declare certain promises made  
by wards and minors to be void1  not    
only among the ,romans1 but among the   
,greeks also1 as it has been  observed  
by ,dion ,chrysostom in his twenty-fifth
 oration4 ,to do away  the effect of    
improvident promises1 some laws         
introduce actions of  recovery1 or      

restitution4 ,but such regulations are  
peculiar to the  civil law1 and have no 
immediate connection with the law of    
nature and  of nations1 any farther than
 that wherever they are established1 it 
is  consonant to natural justice that   
they should be observed4 ,wherefore  if 
a foreigner enter into an agreement with
 a citizen or subject of  any other     
country2 he will be bound by the laws of
 that country1 to  which1 during his    
residence therein1 he owes a temporary  
obedience4  ,but the case is different1 
where an agreement is made upon the open
  sea1 or in a desert island1 or by     
letters of correspondence4 ,for such    
contracts are regulated by the law of   
nature alone1 in the same manner  as    
compacts made by sovereigns in their    
public capacity4    ,,vi4 ,the          
consideration of promises1 made under an
 error1 is a subject  of some intricacy4
 ,for it1 in general1 makes a           
difference1 whether  the promiser knew  
the full extent of his promise1 and the 

value of  the thing promised1 or not1 or
 whether the contract1 which was made1  
originated in fraudulent intention1 or  
not1 or whether one of the  parties was 
privy to the fraud2 and whether the     
fulfilment of it was  an act of strict  
justice1 or only of good faith4 ,for    
according to  the variety of these      
circumstances1 writers pronounce some   
acts void  and others valid1 leaving the
 injured party a discretionary power to 
rescind or amend them4    ,most of these
 distinctions originate in the ancient  
civil1 and  praetorian ,roman law4      
,though some of them are not strictly   
founded in  reason and truth4 ,but the  
most obvious and natural way of         
discovering  the truth is by referring  
to laws1 which derive their force and   
efficacy from the general consent of    
mankind2 so that if a law rests  upon   
the presumption of any fact1 which in   
reality has no existence1  such a law is
 not binding4 ,for when no evidence of  
the fact can be  produced1 the entire   

foundation1 on which that law rests must
 fail4 ,but  we must have recourse to   
the subject1 to the words and           
circumstances of  a law1 to determine   
when it is founded on such a            
presumption4#bg    ,the same rule       
applies to the interpretation of        
promises4 ,for where they  are made upon
 the supposition of a fact1 which in the
 end proves not  to be true1 they lose  
the force of obligations4 ,because the  
promiser  made them upon certain        
conditions only1 the fulfilment of which
 becomes  impossible4 ,cicero1 in his   
first book on the talents and character 
of  an orator1 puts the case of a       
father1 who1 under the supposition or   
intelligence that his son was dead1     
promised to devise his property to  his 
nephew4 ,but the supposition proving    
erroneous1 and the intelligence  false1 
the father was released from the        
obligation of the promise made  to his  
relative4 ,but if the promiser has      
neglected to examine the  matter1 or has

 been careless in expressing his        
meaning1 he will be  bound to repair the
 damage which another has sustained on  
that account4  ,this obligation is not  
built on the strength of the promise1   
but on the  injury1 which it has        
occasioned4 ,an erroneous promise will  
be binding1  if the error was not the   
,,occasion of the promise4 ,for here    
there is  no want of consent in the     
party1 who made it4 ,but if the promise 
was  obtained by fraud1 the person so   
obtaining it shall indemnify the        
promiser for the injury sustained1 if   
there has been any partial error  in the
 promise1 yet in other respects it shall
 be deemed valid4    ,,vii4 ,promises   
extorted by fear are a subject of no    
less intricate  decision4 ,for here too 
a distinction is usually made between a 
well founded and a chimerical fear1     
between a just fear and a bare          
suspicion1 and between the persons who  
occasion it1 whether it be the  person  
to whom the promise is given1 or some   

other4 ,a distinction  is also made     
between acts purely gratuitous1 and     
those in which  both parties have an    
interest4 ,for according to all this    
variety of  circumstances some          
engagements are considered as void1     
others as  revocable at the pleasure or 
discretion of the maker1 and others as  
warranting a claim to indemnity for the 
inconvenience occasioned4 ,but  on each 
of these points there is great diversity
 of opinion4    ,there is some shew of  
reason in the opinion of those who1     
without  taking into consideration the  
power of the civil law to annul or      
diminish an obligation1 maintain that a 
person is bound to fulfil a  promise    
which he has given under impressions of 
fear4 ,for even in  this case there was 
,,consent1 though it was extorted2      
neither was it  conditional1 as in      
erroneous promises1 but absolute4 ,it is
 called  ,,consent4 ,for as ,aristotle  
has observed1 those who consent to throw
  their goods overboard in a storm1     

would have saved them1 had it  not been 
for the fear of shipwreck4 ,but they    
freely part with them  considering all  
the circumstances of time and place4    
,,viii4 ,to render a promise valid1 it  
must be such as it is in the power  of  
the promiser to perform4 ,for which     
reason no promises to do illegal  acts  
are valid2 because no one either has1 or
 ever can have a right to  do them4 ,but
 a promise1 as was said before1 derives 
all its force from  the right of the    
promiser to make it1 nor can it extend  
beyond that4    ,if a thing is not now  
in the power of the promiser1 but may be
 so at  some future time2 the obligation
 will remain in suspense4 ,for the      
promise was only made under the         
expectation of some future ability  to  
fulfil it4 ,but if a person has a       
controul over the condition upon  which 
the promise is made1 to realise it or   
not1 he lies under a moral  obligation  
to use every endeavour to fulfil it4    
,but in obligations of  this kind also1 

the civil law1 from obvious motives of  
general utility1  occasionally          
interposes its authority to make them   
void3 obligations1  which the law of    
nature would have confirmed4    ,,ix4   
,the next general inquiry1 for the most 
part1 refers to the validity  of        
promises made upon any immoral or       
unlawful consideration2 as if1  for     
instance1 any thing is promised to      
another on condition of his  committing 
a murder4 ,here the very promise itself 
is wicked and  unlawful1 because it     
encourages the commission of a crime4   
,but it does  not follow every ,,foolish
 or ,,improvident promise loses the     
force of an  obligation1 as in the      
confirmation of imprudent or prodigal   
grants1 for  no further evil can result 
from a confirmation of what has been    
already  given3 and the invalidity of   
promises would be a greater evil than   
any  that could result from a           
confirmation of the most improvident4   
,but in  promises made upon ,,immoral   

and ,,unlawful considerations1 there is 
always  a criminality remaining1 even   
while they continue unfulfilled4 ,for   
during the whole of that time1 the      
expectation of fulfilment carries  with 
it the indelible mark of encouragement  
to the commission of a  crime4          
,,xii4#bh ,we are obliged to confirm the
 engagements made by others1  acting in 
our name1 if it is evident that they had
 special1 or general  instructions from 
us to do so4 ,and in granting a         
commission with full  powers to any one1
 it may so happen that we are bound by  
the conduct  of that agent1 even if he  
exceed the secret instructions which he 
has  received4 ,for he acts upon that   
ostensible authority1 by which we are   
bound to ratify whatever he does1       
although we may have bound him to do    
nothing but according to his private    
instructions4 ,this rule1 we must       
observe1 applies to the promises made by
 ambassadors in the name of  their      
sovereigns1 when1 by virtue of their    

public credentials1 they  have exceeded 
their private orders4    ,,xiii4 ,from  
the preceding arguments1 it is easy to  
understand how far  owners of ships are 
answerable for the acts of the masters  
employed by  them in those vessels1 or  
merchants for the conduct of their      
factors4  ,for natural equity will      
qualify the actions brought against     
them1  according to the instructions and
 powers which they give4 ,so that we    
may justly condemn the rigour of the    
,roman law1 in making the owners  of    
ships absolutely bound by all the acts  
of the masters employed4 ,for  this is  
neither consonant to natural equity1    
which holds it sufficient  for each     
party to be answerable in proportion to 
his share1 nor is it  conducive to the  
public good4 ,for men would be deterred 
from employing  ships1 if they lay under
 the perpetual fear of being answerable 
for the  acts of their masters to an    
unlimited extent4 ,and therefore in     
,holland1  a country where trade has    

flourished with the greatest vigour1 the
  ,roman law has never been observed    
either now or at any former period4  ,on
 the contrary1 it is an established rule
 that no action can be  maintained      
against the owner for any greater sum   
than the value of the  ship and cargo4  
,for a promise to convey a right1       
acceptance is no less necessary than  in
 a transfer of property4 ,and in this   
case there is supposed to have  been a  
precedent request1 which is the same as 
acceptance4 ,nor is this  contradicted  
by the promises which the civil law     
implies every one to  have made to the  
state1 ,,without ,,any ,,request ,,or   
,,formal ,,acceptance4    ,,xiv4 ,a     
reason which has induced some to believe
 that the sole act of a  promiser1 by   
the law of nature1 is sufficient4 ,our  
first position is  not contradicted by  
the ,roman law4 ,for it no where says1  
that a promise  has its full effect     
before acceptance1 but only forbids the 
revocation  of it which might prevent   

acceptance3 and this effect results1 not
 from  ,,natural but from purely ,,legal
 rules4    ,,xv4 ,another question is1  
whether the acceptance alone of a       
promise is  sufficient1 or whether it   
ought to be communicated to the promiser
  before it can be made binding4    ,it 
is certain that a promise may be made   
two ways1 either upon  condition of its 
being fulfilled1 if accepted1 or upon   
condition of its  being ratified1 if the
 promiser is apprised of its being      
accepted4 ,and  in cases of mutual      
obligation1 it is presumed to be taken  
in the latter  sense2 but it is better  
to take promises that are purely        
gratuitous in  the former sense1 unless 
there be evidence to the contrary4      
,,xvi4 ,from hence it follows1 that a   
promise may be revoked1 without the     
imputation of injustice or levity1      
,,before ,,acceptance1 as no right has  
yet been conveyed2 especially if        
,,acceptance were made the condition  of
 its being fulfilled4 ,it may be revoked

 too if the party to whom it  was made1 
should die before acceptance4 ,because  
it is evident that  the power to accept 
it or not1 was conferred upon ,,him1 and
 not upon  his ,,heirs4 ,for to give a  
man a right1 which may ,,possibly       
descend to  his heirs1 is one thing1 and
 to express an intention of giving it to
  his heirs is another4 ,for it makes an
 essential difference upon what  person 
the favour is conferred4 ,this is       
understood in the answer made  by       
,neratius1 who said1 that he did not    
believe the prince would have  granted  
to one who was dead1 what he granted1   
supposing him still alive4    ,,xvii4 ,a
 promise may be revoked1 by the death of
 the person appointed  to communicate to
 a third the intention of the promiser4 
,because the  obligation to the third   
person rested upon such communication4  
,the  case is different1 where a public 
messenger is employed1 who is not       
himself the obligatory instrument1 but  
only the means through which it  is     

conveyed4 ,therefore letters indicating 
a promise1 or consent may be  conveyed  
by any one4 ,yet there is a distinction 
to be made between a  minister appointed
 to communicate a promise1 and one      
appointed to make  the promise in his   
own name4    ,for in the former case1 a 
revocation will be valid1 even though it
  has not been made known to the        
minister employed2 but in the latter    
case1 it will be entirely void1 because 
the right of promising was  committed to
 the minister1 and fully depended upon  
his will2 therefore  the obligation of  
the promise was complete1 as he knew of 
no intended  revocation4 ,so also in the
 former case1 where a second person is  
commissioned to communicate the         
intentions of a donor to a third2 even  
if the donor should die1 the acceptance 
of the gift will be deemed  valid1 all  
that was requisite being performed on   
one part2 though till  that period the  
intention was revocable1 as is evident  
in the case of  bequests4 ,but in the   

other case1 where a person has received 
a full  commission to execute a promise 
during the ,,life of the donor1 should  
the donor die before the execution of   
it1 and the person employed be  apprised
 of his death2 the commission1 the      
promise1 and the acceptance  of it will 
then1 at once1 become void4    ,in      
doubtful cases1 it is reasonable to     
suppose that it was the  intention of   
the promiser1 that the commission which 
he gave should  be executed1 unless some
 great change1 as for instance1 his own 
death  should occur4 ,yet reasons in    
favour of a contrary opinion may easily 
be found and admitted1 especially with  
respect to pious donations1  which1 at  
all events1 ought to stand good4 ,and in
 the same manner may  be decided the    
long disputed question1 whether an      
action on account of  such a bequest    
could be brought against the heir4 ,upon
 which the author  of the second book to
 ,herennius says1 that ,marcus ,drusus  
the praetor  decided one way1 and       

,sextus ,julius another4    ,,xviii4    
,the acceptance of a promise for a third
 person is a matter  subject to         
discussion1 in which there is a         
distinction to be observed  between a   
promise made to a person of a thing1    
which is to be given to  another1 and a 
promise made directly to the person     
himself1 on whom  the former is to be   
conferred4 ,if a promise is made to any 
one1 where  his own personal interest is
 not concerned1 a consideration         
introduced  by the ,roman law1 by       
acceptance he seems naturally to acquire
 a right  which may be transferred to   
another for ,,his acceptance1 and this  
right  will pass so fully1 that in the  
mean time the promise cannot be revoked 
by the person who gave1 though it may be
 released by him who received  it4 ,for 
that is a meaning by no means repugnant 
to the law of nature1  and it is        
entirely conformable to the words of    
such a promise2 nor can  it be a matter 
of indifference to the person1 through  

whom another is  to receive a benefit4  
,but if a promise is made directly to   
one1 on whom a thing is to be           
conferred1 a distinction must be made1  
whether the person receiving  such a    
promise has ,,special commission for    
acceptance1 or one so ,,general  as to  
include acceptance1 or has it not4 ,when
 a commission has been  previously      
given1 no farther distinction is        
necessary1 whether the  person be free  
or not1 a condition which the ,roman    
laws require4 ,but it  is plain that    
from such an acceptance1 let the        
condition of the person  be what it     
will1 the promise is complete3 because  
consent may be given  and signified     
through the medium of another4 ,for a   
person is supposed  to have fully       
intended1 what he has put into the power
 of another to  accept or refuse4       
,where there is no such commission1 if  
another1 to whom the promise  was not   
directly made1 accepts it with the      
consent of the promiser1  the promise   

will be so far binding1 that the        
promiser will not be at  liberty to     
revoke it1 before the person1 in whose  
favour it was made  has ratified1 and   
afterwards chosen to release the        
engagement4 ,yet1 in  the mean time1 the
 accepter cannot release it1 as having  
derived no  peculiar right from it      
himself1 but only been used as an       
instrument  in promoting the kind       
intentions and good faith of the        
promiser4 ,the  promiser therefore      
himself1 by revoking it1 is not doing   
violence to  the perfect right of       
another1 but only acting in             
contradiction his own  good faith4      
,,xix4 ,from what has been said before1 
it is easy to conceive what  opinion    
ought to be entertained of a burdensome 
condition annexed to  a promise4 ,for it
 may be annexed at any time1 till a     
promise has been  completed by          
acceptance1 or an irrevocable pledge to 
fulfil it has been  given4 ,but the     
condition of a burden annexed to a      

favour intended to  be conferred upon a 
third person1 through the medium of any 
one1 may  be revoked before the person  
has confirmed it by his acceptance4 ,on 
this point there is great difference of 
opinion4 ,but upon impartial            
consideration the natural equity of any 
case may be easily seen without  any    
great length of arguments4    ,,xx4     
,,xxi4 ,,xxii4 ,another point of        
discussion relates to the validity of   
an erroneous promise1 when the person1  
who made it1 upon being apprised  of his
 error is willing to adhere to his      
engagement4 ,and the same  inquiry      
applies to promises1 which1 arising out 
of fear or any other  such motive1 are  
prohibited by the civil law4 ,what1 it  
may be asked1  will become of these     
promises1 if that fear1 or that motive  
has been  removed8    ,to confirm such  
obligations1 some think an internal     
consent of the mind  alone in           
conjunction with some previous external 
act is sufficient4  ,others disapprove  

of this opinion1 because they do not    
admit that an  external act is a real   
sign of a subsequent intention4         
,therefore they  require an express     
repetition of the promise and           
acceptance4 ,between  these two         
opinions1 the truth is most likely to be
 found4 ,there may  be an external act  
expressive of a promise1 though         
unaccompanied with  words2 where one    
party's accepting and retaining a gift1 
and the  other's relinquishing his right
 in it are sufficient to constitute a   
full consent4    ,to prevent civil laws 
from being confounded with natural      
justice1 we  must not omit noticing1 in 
this place1 that promises though founded
 in  no ,,express motive1 are not1 any  
more than gifts1 void by the law of     
nature4    ,nor is a person who has     
engaged for another's performing any    
thing1  bound to pay damages and        
interest for neglect1 provided he has   
done  every thing that was necessary on 
his part towards obtaining its          

accomplishment4 ,unless the express     
terms of the agreement1 or the  nature  
of the business require a stricter      
obligation1 positively  declaring that1 
under all circumstances whatever1 the   
thing shall be  performed4              
,,chapter ,,xii4    ,,on ,,contracts4   
,human actions divided into simple or   
mixed--,gratuitous1      or accompanied 
with mutual obligation--,acts by way    
of exchange1 adjustment of what is to be
 given or                               
done--,partnership--,contracts--,previou
s equality--,as to knowledge      of all
 circumstances--,as to freedom of       
consent1 requisite in      contracts of 
exchange1 of sale1 of commission and    
loan--,price      of things in what     
manner to be rated--,transfer of        
property by      sale--,what kind       
contrary to the law of                  
nature--,money--,its use as      the    
standard value of all things--,no       
abatement in the rent or hire      of a 
thing on account of ordinary            

accidents--,increase or diminution      
of just salaries--,usury1 by what law   
forbidden--,interest not      coming    
under the name of                       
usury--,insurance--,partnerships of     
,trade1      ,naval                     
,associations--,inequality in the terms 
of a contract no way      repugnant to  
the law of nations4      ,i4 and ,,ii4  
,of all human actions1 wherein the      
interest of others is  concerned1 some  
are simple1 and some are mixed4 ,in     
those of the former  description all    
service is purely gratuitous1 but in the
 latter it is  a traffic of exchange4   
,in the one case the service is granted 
without  a requital1 but in the other it
 is accompanied with an obligation on   
both sides4 ,gratuitous services are    
either immediate in their effect1  or to
 take place at some future time4 ,a     
beneficial service may be said  to be   
immediately performed1 when it confers  
an advantage1 to which  the person so   
benefitted has no direct or absolute    

right4 ,as a gift  transfers property1  
where there is no previous right4 ,a    
subject1 which  has been already        
discussed4 ,and promises may be said to 
relate to some  future gift1 or action1 
of which a full and sufficient          
explanation has  before been given4     
,services accompanied with mutual       
obligation are those where the use  of a
 thing is allowed to any one without a  
complete alienation1 or  where labour is
 given in expectation of some valuable  
consideration4  ,under the first of     
these heads we may reckon the loan and  
use of all  consumable or inconsumable  
property3 and under the latter we may   
place  all commissions to transact      
business1 or all trusts to preserve the 
property of another4 ,similar to which  
are all promises of something to  be    
done1 except that they regard a future  
time4 ,and in this view we  may consider
 all the actions1 which are now to be   
explained4    ,,iii4 ,in all acts of    
exchange1 there is either an adjustment 

of shares1  or the profits are regarded 
as a common stock4 ,and such adjustments
  are made by the ,roman ,lawyers in the
 following terms1 ,i give this  to      
receive that in return1 ,i do this in   
order for you to do that1 or  ,i do this
 for you to give me that4#bi ,but the   
,romans exclude from  that adjustment   
certain kinds of contracts1 which they  
call ,,express  ,,engagements4 ,not     
because they are entitled to any such   
peculiar name  more than the simple acts
 of exchange already mentioned3 but     
because  from frequent use they have    
naturally derived a character similar to
  that of the original contract1 from   
which they are named1 though they  are  
not attended exactly with the same      
circumstances1 nor expressed  directly  
in the same terms4 ,whereas in other    
contracts less frequently  in use1 the  
form was confined to an exact statement 
of all the  circumstances of the case4  
,an action upon which was therefore     
called by  the ,roman law an ,,action   

,,in ,,prescribed ,,words4    ,for the  
same reason1 if those contracts1 which  
are in general use1 be  accompanied with
 any of the requisite formalities1 as in
 a bargain  or sale1 if the price had   
been agreed upon1 though no part of the 
agreement had been performed by either  
of the parties1 the civil law  enforced 
an obligation to fulfil them4 ,but as it
 considers those  contracts which are   
seldom used1 more in the light of       
voluntary  engagements1 depending upon  
the good faith of the respective        
parties1  than upon legal obligation1 it
 leaves both sides at liberty to        
relinquish them at any time prior to    
their being naturally performed4        
,distinctions of this kind are unknown  
to the law of nature1 which  gives      
,,simple ,,agreements equal authority   
with those1 that are included  by       
civilians in the class of ,,express     
,,contracts4 ,and on the score of       
antiquity their pretensions are far     
superior4 ,it is therefore perfectly    

conformable to the principles of nature 
to reduce the adjustment of  all        
agreements1 without any regard to the   
distinction between ,,simple  and       
,,express ,,contracts1 to the three     
species already named4 ,thus1 for       
instance1 one thing is given for        
another1 which constitutes barter1  the 
most ancient kind of traffic2 the next  
step in the progress of  commercial     
intercourse is where one kind of money  
is given for another1  a transaction    
which by merchants is called exchange2  
and a third  species of contract is     
where money is given for any thing1 as  
in the  acts of selling and buying4 ,or 
the ,,use of one thing may be given for 
that of another2 money also may be given
 for the ,,use of a thing1 which  last  
method constitutes the acts of letting  
and hiring4    ,the term use is to be   
understood here as applied not only to  
the bare  unproductive use of a thing1  
but to that which is attended with      
profit1  whether it be temporary1       

personal1 hereditary or circumscribed1  
as  was the case among the ,hebrews with
 regard to transfers1 which could  be   
made for no longer a time than till the 
year of ,jubilee4 ,the very  essence of 
a loan consists in a return of the same 
kind of thing  after a stated period4 ,a
 return which can take place only in    
things  regulated by weight1 number1 or 
measure1 whether it be in commodities   
or money4 ,but the exchange of labour   
branches out into various kinds of      
recompence or return4 ,as1 for instance1
 a person gives his labour for  money1  
which in the daily transactions of life 
is called hire or wages3  where one     
undertakes to indemnify another for     
accidental losses or  damages1 it is    
called insurance3 a species of contract 
scarce known to  the ancients1 but now  
forming a very important branch in all  
mercantile  and maritime concerns4      
,,iv4 ,acts of communication are those1 
where each contributes a share  to the  
joint stock4 ,perhaps on one side1      

money1 and on the other1  skill and     
labour may be given4 ,but in whatever   
way these concerns are  regulated1 they 
come under the denomination of          
partnerships4 ,with this  class we may  
rank the alliances of different states  
in war4 ,and of  the same description   
are those naval associations of         
individuals1 so  frequently formed in   
,holland for protection against pirates 
or other  invaders1 which is generally  
called an ,,admiralty1 and to which the 
,greeks gave the name of a joint fleet4 
,v4 and ,,vi4 ,now mixed actions are    
either such in themselves1 or made so   
by some adventitious circumstance4 ,thus
 if ,i knowingly give one person  a     
greater price for a thing than ,i can   
purchase it for of another1 the  excess 
of price may be considered partly as a  
gift1 and partly as a  purchase4 ,or if 
,i engage a goldsmith to make me any    
article with his  own materials1 the    
price which ,i give will be partly a    
purchase1 and  partly wages4 ,the feudal

 system too might be considered as a    
train of  mixed contracts4 ,where the   
grant of the fee might be considered as 
a beneficial act2 but the military      
service required by the ,lord1 in       
return for his protection1 gave the fee 
the nature of a contract1 where  a      
person did one thing expecting for it   
the performance of another4 ,but  if any
 payment is attached to it by way of    
acknowledgement1 it partakes  of the    
nature of a quit rent4 ,so money sent to
 sea by way of venture is  something    
compounded of a contract1 of a loan1 and
 of an insurance4    ,,vii4 ,all acts   
beneficial to others1 except those that 
are purely  gratuitous1 come under the  
denomination of contracts4    ,,viii4   
,in all contracts1 natural justice      
requires that there should be  an       
equality of terms3 insomuch that the    
aggrieved party has an action  against  
the other for overreaching him4 ,this   
equality consists partly  in the        
performance1 and partly in the profits  

of the contract1 applying  to all the   
previous arrangements1 and to the       
essential consequences of  the          
agreement4    ,,ix4 ,as to an equality  
of terms previous to the contract1 it is
 evident  that a seller is bound to     
discover to a purchaser any defects1    
which are known to him1 in a thing      
offered for sale2 a rule not  only      
established by civil laws1 but strictly 
conformable to natural  justice4 ,for   
the words of agreement between          
contracting parties are  even stronger  
than those1 on which society is founded4
 ,and in this  manner may be explained  
the observation of ,diogenes the        
,babylonian1  who in discussing this    
topic said1 it is not every degree of   
silence1  which amounts to concealment2 
nor is one person bound to disclose     
every thing1 which may be of service to 
another4 ,thus for instance1 a  man of  
science is not strictly bound to        
communicate to another that  knowledge1 
which might redound to his advantage4   

,for contracts1 which  were invented to 
promote a beneficial intercourse among  
mankind1  require some closer and more  
intimate connection than bare good-will 
to enforce their obligation4 ,upon which
 ,ambrose has justly remarked1  that1 in
 contracts1 the faults of things exposed
 to sale ought to be  made known1 of    
which unless the seller has given       
intimation1 though he  may have         
transferred the right of property by    
sale1 yet he is liable to  an action of 
fraud4    ,but the same cannot be said  
of things not coming under the nature   
of contracts4 ,thus if any one should   
sell his corn at a high price1  when he 
knows that many ships laden with grain  
are bound for that  place1 though it    
would be an act of kindness in him to   
communicate  such intelligence to the   
purchasers1 and though no advantage     
could be  derived to him1 from          
withholding the communication1 but at   
the expence  of charity1 yet there is   
nothing unjust in it1 or contrary to the

  general rules of dealing4 ,the        
practice is vindicated by ,diogenes in  
the passage of ,cicero alluded to1 he   
says1 ,i carried my commodities  and    
offered them to sale1 in selling them ,i
 demanded no greater price  than others 
did2 if the supply had been greater ,i  
would have sold them  for less1 and     
where is the wrong done to any one8 ,the
 maxim of ,cicero  therefore cannot     
generally be admitted1 that1 knowing a  
thing yourself1  to wish another1 whose 
interest it is to know it also1 to      
remain  ignorant of it1 merely for the  
sake of your own advantage1 amounts to  
a fraudulent concealment4 ,by no means2 
for that only is a fraudulent           
concealment which immediately affects   
the nature of the contract3  as for     
instance1 in selling a house1 to conceal
 the circumstance of  its being infected
 with the plague1 or having been ordered
 by public  authority to be pulled down4
 ,but it is unnecessary to mention1 that
  the person1 with whom a seller treats1

 ought to be apprised of every          
circumstance attending the thing offered
 for sale2 if it be lands1  whether the 
tenure be subject to a rent-charge1 or  
service of any kind1  or be entirely    
free4    ,x4 and ,,xi4 ,nor is the      
equality that has been explained        
confined solely  to the communication of
 all the circumstances of the case to   
the  contracting parties1 but it        
includes also an entire freedom of      
consent  in both4    ,in the principal  
act itself1 the proper equality requires
 that no more  should be demanded either
 party than what is just4 ,which can    
scarce  have a place in gratuitous acts4
 ,to stipulate for a recompence in      
return for a loan1 or for the service of
 labour or commission is doing  no      
wrong1 but constitutes a kind of mixed  
contract1 partaking of the  nature of a 
gratuitous act1 and an act of exchange4 
,and in all acts  of exchange1 this     
equality is to be punctually observed4  
,nor can it  be said that if one party  

promises more1 it is to be looked upon  
as a  gift4 ,for men never enter into   
contracts with such intentions1 nor     
ought the existence of such intentions  
ever be presumed1 unless they  evidently
 appear4 ,for all promises or gifts1 in 
these cases1 are made  with an          
expectation of receiving an equivalent  
in return4 ,when1 in  the words of      
,chrysostom1 in all bargains and        
contracts1 we are anxious  to receive   
,,more and give ,,less than is due1 what
 is this but a species  of fraud or     
robbery8 ,the writer of the life of     
,isidorus in ,photius1  relates of      
,hermias1 that when any thing1 which he 
wished to purchase  was valued at too   
low a rate1 he made up the deficiency of
 the price1  thinking that to act       
otherwise was a species of injustice1   
though it  might escape the observation 
of others4 ,and in this sense1 may be   
interpreted the law of the ,hebrews4    
,,xii4 ,there remains another degree of 
equality to be considered1 arising  out 

of the following case4 ,it may happen in
 contracts that although  nothing is    
concealed1 which ought to be made known1
 nor more exacted  or taken by one party
 than is due1 yet there may be some     
inequality  without any fault in either 
of the parties4 ,perhaps1 for instance  
there  might be some unknown defect in  
the thing1 or there might be some       
mistake in the price4 ,yet1 in such     
cases1 to preserve that equality1  which
 is an essential requisite in all       
contracts1 the party suffering  by such 
defect or mistake1 ought to be          
indemnified by the other4 ,for in  all  
engagements it either is1 or ought to be
 a standing rule1 that both  parties    
should have equal and just advantages4  
,it was not in every kind of equality   
that the ,roman law established  this   
rule1 passing over slight occasions1 in 
order to discourage  frequent and       
frivolous litigation4 ,it only          
interposed its judicial  authority in   
weighty matters1 where the price        

exceeded the just value  by one half4   
,laws indeed1 as ,cicero has said1 have 
power to compel1 or  restrain men1      
whereas philosophers can only appeal to 
their reason or  understanding4 ,yet    
those1 who are not subject to the power 
of civil  laws ought to comply with     
whatever reason points out to them to be
  just3 ,so too ought they1 who are     
subject to the power of human laws1 to  
perform whatever natural and divine     
justice requires1 even in cases1  where 
the laws neither give nor take away the 
right1 but only forbear  to enforce it  
for particular reasons4    ,,xiii4      
,there is a certain degree of equality1 
too1 in beneficial or  gratuitous acts1 
not indeed like that prevailing in      
contracts of  exchange1 but proceeding  
upon a supposition of the hardship1 that
  any one should receive detriment from 
voluntary services1 which he  bestows4  
,for which reason a voluntary agent     
ought to be indemnified  for the expence
 or inconvenience1 which he incurs1 by  

undertaking the  business of another4 ,a
 borrower too is bound to repair a thing
 that has  been damaged or destroyed4   
,because he is bound to the owner not   
only  for the thing itself1 by virtue of
 the property which he retains in  it1  
but he owes a debt of gratitude also for
 the favour of the loan2  unless it     
appears that the thing so lent would    
have perished1 had it  even remained in 
possession of the owner himself4 ,in    
this case1 the  owner loses nothing by  
the loan4 ,on the other hand1 the       
depositary has  received nothing but a  
trust4 ,if the thing therefore is       
destroyed1 he  cannot be bound to       
restore what is no longer in existence1 
nor can he  be required to make a       
recompence1 where he has derived no     
advantage2  for in taking the trust he  
did not receive a favour1 but conferred 
one4 ,in a pawn1 the same as in a thing 
let out for hire1 a middle way  of      
deciding the obligation may be pursued1 
so that the person taking  it is not    

answerable1 like a borrower1 for every  
accident1 and yet he  is obliged to use 
greater care1 than a bare depositary1 in
 keeping  it safe4 ,for though taking a 
pledge is a gratuitous acceptance1 it   
is followed by some of the conditions of
 a contract4 ,all these cases  are      
conformable to the ,roman law1 though   
not originally derived from  thence1 but
 from natural equity4 ,rules1 all of    
which may be found among  other nations4
 ,and1 among other works1 we may refer  
to the third book  and forty-second     
chapter of the ,,guide ,,for ,,doubtful 
,,cases1 written by  ,moses ,maimonides1
 a ,jewish writer4    ,upon the same    
principles the nature of all other      
contracts may be  explained2 but the    
leading features in those of certain    
descriptions  seemed sufficient for a   
treatise like the present4    ,,xiv4    
,the general demand for any thing1 as   
,aristotle has clearly  proved1         
constitutes the true measure of its     
value1 which may be seen  particularly  

from the practice prevailing among      
barbarous nations of  exchanging one    
thing for another4 ,but this is not the 
only standard3  for the humours and     
caprice of mankind1 which dictate and   
controul all  regulations1 give a       
nominal value to many superfluities4 ,it
 was luxury1  says ,pliny1 that first   
discovered the value of pearls1 and     
,cicero has  somewhere observed1 that   
the worth of such things can only be    
estimated  by the desires of men4       
,but on the other hand1 it happens that 
the plentiful supply of  necessaries    
lowers their price4 ,this ,seneca1 in   
the #aeth chapter of his  sixth book on 
benefits1 proves by many instances1     
which he concludes  with the following  
observation1 the price of every thing   
must be  regulated by the market1 and   
notwithstanding all your praises1 it is 
worth nothing more than it can be sold  
for4 ,to which we may add the  authority
 of ,paulus the ,lawyer1 who says1 the  
prices of things do not  depend upon the

 humours and interest of individuals1   
but upon common  estimation1 that is1 as
 he explains himself elsewhere1         
according to the  worth which they are  
of to all4    ,hence it is that things  
are valued in proportion to what is     
usually  offered or given for them1 a   
rule admitting of great variation and   
latitude1 except in certain cases1 where
 the law has fixed a standard  price4   
,in the common price of articles1 the   
labour and expence of the  merchant in  
procuring them is taken into the        
account1 and the sudden  changes so     
frequent in all markets depend upon the 
number of buyers1  whether it be great  
or small1 and upon the money and        
marketable  commodities1 whether they be
 plentiful or scarce4    ,there may     
indeed be casualties1 owing to which a  
thing may be lawfully  bought or sold   
above or below the market price4 ,thus  
for instance1 a  thing by being damaged 
may have lost its original or common    
value1 or  that1 which otherwise would  

not have been disposed of1 may be bought
 or  sold from some particular liking or
 aversion4 ,all these circumstances     
ought to be made known to the           
contracting parties4 ,regard too should 
be  had to the loss or gain arising from
 delay or promptness of payment4        
,,xv4 ,in buying and selling we must    
observe1 that the bargain is  completed 
from the very moment of the contract1   
even without delivery1  and that is the 
most simple way of dealing4 ,thus       
,seneca says1 that a  sale is a transfer
 of one's right and property in a thing 
to another1  which is done in all       
exchanges4 ,but if it be settled that   
the property  shall not be transferred  
immediately1 still the seller will be   
bound to  convey it at the stated       
period1 taking in the mean time all the 
profits  and losses4    ,whereas the    
completion of bargain and sale1 by      
giving the purchaser  a right of        
possession and ejectment1 and conveying 
to him the hazard  with all the profits 

of the property1 even before it is      
transferred1  are regulations of the    
civil law not universally observed4     
,indeed  some legislators have made the 
seller answerable for all accidents  and
 damages1 till the actual delivery of   
possession is made1 as  ,theophrastus   
has observed in a passage in ,stobaeus1 
under the title  of laws1 where the     
reader will find many customs1 relating 
to the  formalities of sale1 to earnest1
 to repentance of a bargain1 very       
different from the rules of the ,roman  
law4 ,and among the ,rhodians1 ,dion    
,prusaeensis informs us that all sales  
and contracts were confirmed by  being  
entered in a public register4    ,we    
must observe too that1 if a thing has   
been twice sold1 of the two  sales the  
one is valid1 where an immediate        
transfer of the property has  been made1
 either by delivery of possession1 or in
 any other mode4 ,for  by this means the
 seller gives up an absolute right1     
which could not  pass by a promise      

alone4    ,,xvi4 ,it is not every kind  
of monopoly that amounts to a direct    
violation of the laws of nature4 ,the   
,sovereign power may have very just     
reasons for granting monopolies1 and    
that too at a settled price3 a  noble   
instance of which we find in the history
 of ,joseph1 who governed  ,egypt under 
the auspices of ,pharaoh4#cj ,so also   
under the ,roman  government the people 
of ,alexandria1 as we are informed by   
,strabo1  enjoyed the monopoly of all   
,indian and ,ethiopian goods4    ,a     
monopoly also may1 in some cases1 be    
established by individuals1  provided   
they sell at a reasonable rate4 ,but all
 combinations to raise  the necessary   
articles of life to an exorbitant rate1 
or all violent  and fraudulent attempts 
to prevent the market from being        
supplied1  or to buy up certain         
commodities1 in order to enhance the    
price1 are  public injuries and         
punishable as such4#ca ,or indeed ,,any 
,,way of  preventing the importation of 

goods1 or buying them up in order to    
sell them at a greater rate than usual1 
though the price1 ,,under ,,some        
,,particular ,,circumstances1 may not   
seem unreasonable1 is fully shewn by    
,ambrose in his third book of ,offices  
to be a breach of charity2 though  it   
come not directly under the prohibition 
of laws4    ,,xvii4 ,as to money1 it may
 be observed that its uses do not result
  from any value intrinsically belonging
 to the precious metals1 or to  the     
specific denomination and shape of coin1
 but from the general  application which
 can be made of it1 as a standard of    
payment for all  commodities4 ,for      
whatever is taken as a common measure of
 all other  things1 ought to be liable1 
in itself1 to but little variation4 ,now
 the  precious metals are of this       
description1 possessing nearly the same 
intrinsic value at all times and in all 
places4 ,though the nominal  value of   
the same quantity of gold and silver1   
whether paid by weight  or coin will be 

greater or less1 in proportion to the   
abundance or  scarcity of the things for
 which there is a general demand4       
,,xviii4 ,letting and hiring1 as ,caius 
has justly said1 come nearest to        
selling and buying1 and are regulated by
 the same principles4 ,for the  price   
corresponds to the rent or hire1 and the
 property of a thing to  the liberty of 
using it4 ,wherefore as an owner must   
bear the loss of  a thing that perishes1
 so a person hiring a thing or renting a
 farm  must bear the loss of all        
ordinary accidents1 as for instance1    
those  of barrenness or any other cause1
 which may diminish his profits4#cb     
,nor will the owner1 on that account1 be
 the less entitled to the  stipulated   
price or rent1 because he gave the other
 the right of  enjoyment1 which at that 
time was worth so much1 unless it was   
then  agreed that the value should      
depend upon such contingencies4    ,if  
an owner1 when the first tenant has been
 prevented from using a  thing1 shall   

have let it to another1 all the profits 
accruing from it  are due to the first  
tenant1 for it would not be equitable   
that the  owner should be made richer by
 what belonged to another4    ,,xix4    
,the next topic1 that comes under       
consideration1 is the lawfulness  of    
taking interest for the use of a        
consumable thing2 the arguments  brought
 against which appear by no means such  
as to command our assent4  ,for as to   
what is said of the loan of consumable  
property being a  gratuitous act1 and   
entitled to no return1 the same         
reasoning may  apply to the letting of  
inconsumable property for hire1         
requiring a  recompence for the use of  
which is never deemed unlawful1 though  
it  gives the contract itself a         
different denomination4    ,nor is there
 any more weight in the objection to    
taking interest for  the use of money1  
which in its own nature is barren and   
unproductive4  ,for the same may be said
 of houses and other things1 which are  

unproductive and unprofitable without   
the industry of man4#cc    ,there is    
something more specious in the argument1
 which maintains1  that1 as one thing is
 here given in return for another1 and  
the use and  profits of a thing cannot  
be distinguished from the thing itself1 
when  the very use of it depends upon   
its consumption1 nothing more ought to  
be required in return for the use1 than 
what is barely equivalent to  the thing 
itself4    ,but it is necessary to      
remark1 that when it is said the        
enjoyment of  the profits of consumable 
things1 whose property is transferred1  
in  the use1 to the borrower or trustee1
 was introduced by an act of the        
senate1 this does not properly come     
under the notion of ,usufruct1 which    
certainly in its original signification 
answers to no such right4  ,yet it does 
not follow that such a right is of no   
value1 but on the  contrary money may be
 required for surrendering it to the    
proprietor4  ,thus also the right of not

 paying money or wine borrowed till     
after a  certain time is a thing whose  
value may be ascertained1 the delay     
being  considered as some advantage4    
,therefore in a mortgage the profits of 
the land answer the use of money4 ,but  
what ,cato1 ,cicero1 ,plutarch and      
others allege against usury1 applies not
 so much to the nature of the  thing1 as
 to the accidental circumstances and    
consequences with which  it is commonly 
attended4#cd    ,,xx4 ,there are some   
kinds of interest1 which are thought to 
wear the  appearance of usury1 and      
generally come under that denomination1 
but which in reality are contracts of a 
different nature4 ,the five  shillings  
commission which a banker1 for instance1
 charges upon  every hundred pounds1 is 
not so much an interest in addition to  
five  per cent1 as a compensation for   
his trouble1 and for the risk and       
inconvenience he incurs1 by the loan of 
his money1 which he might have  employed
 in some other lucrative way4 ,in the   

same manner a person who  lends money to
 many individuals1 and1 for that        
purpose1 keeps certain  sums of cash in 
his hands1 ought to have some indemnity 
for the  continual loss of interest upon
 those sums1 which may be considered  as
 so much dead stock4 ,nor can any       
recompence of this kind be branded  with
 the name of usury4 ,demosthenes1 in his
 speech against ,pantaenetus1  condemns 
it as an odious act of injustice1 to    
charge with usury a man1  who in order  
to keep his principal undiminished1 or  
to assist another  with money1 lends out
 the savings of his industry and frugal 
habits1  upon a moderate interest4      
,,xxi4 ,those human laws1 which allow a 
compensation to be made for the  use of 
money or any other thing1 are neither   
repugnant to natural nor  revealed law4 
,thus in ,holland1 where the rate of    
interest upon common  loans was eight   
per cent1 there was no injustice in     
requiring twelve  per cent of merchants2
 because the hazard was greater4 ,the   

justice and  reasonableness indeed of   
all these regulations must be measured  
by the  hazard or inconvenience of      
lending4 ,for where the recompence      
exceeds  this1 it becomes an act of     
extortion or oppression4    ,,xxii4     
,contracts for guarding against danger1 
which are called  insurances1 will be   
deemed fraudulent and void1 if the      
insurer knows  beforehand that the thing
 insured is already safe1 or has reached
 its  place of destination1 and the     
other party that it is already destroyed
  or lost4 ,and that not so much on     
account of the equality naturally       
requisite in all contracts of exchange1 
as because the danger and  uncertainty  
is the very essence of such contract4   
,now the premium upon  all insurances   
must be regulated by common             
estimation4#ce    ,,xxiii4 ,in trading  
partnerships1 where money is contributed
 by both  parties2 if the proportions be
 equal1 the profits and the losses ought
  to be equal also4 ,but if they be     

unequal1 the profits and the losses     
must bear the same proportion1 as       
,aristotle has shewn at the conclusion  
of the eighth book of his ,ethics4 ,and 
the same rule will hold good  where     
equal or unequal proportions of labor   
are contributed4 ,labor  may be given as
 a balance against money1 or both labor 
and money may  be given1 according to   
the general maxim that one man's labour 
is an  equivalent for another man's     
money4    ,but there are various ways of
 forming these agreements4 ,if a man    
borrows money to employ his skill upon  
in trading for himself1 whether  he     
gains or loses the whole1 he is         
answerable to the owner for the         
principal4 ,but where a man unites his  
labor to the capital of another  in     
partnership1 there he becomes a partner 
in the principal1 to a share  of which  
he is entitled4 ,in the first of these  
cases the principal is  not compared as 
a balance against the labor1 but it is  
lent upon terms  proportioned to the    

risk of losing it1 or the probable gains
 to be  derived from it4 ,in the other  
case1 the price of labour is weighed1 as
  it were1 against the money1 and the   
party who bestows it1 is entitled  to an
 equivalent share in the capital4       
,what has been said of labour may be    
applied to voyages1 and all  other      
hazardous undertakings4 ,for it is      
contrary to the very nature  of         
partnerships for any one to share in the
 gain1 and to be exempt  from the       
losses4 ,yet it may be so settled       
without any degree of  injustice4 ,for  
there may be a mixed contract arising   
out of a contract  of insurance in which
 due equality may be preserved1 by      
allowing the  person1 who has taken upon
 himself the losses1 to receive a       
greater  share of the gain than he would
 otherwise have done4 ,but it is a thing
  quite inadmissible that any one should
 be responsible for the losses  without 
partaking of the gains2 for a communion 
of interests is so  natural to society  

that it cannot subsist without it4      
,what has been said by writers on the   
civil law1 that the shares are          
understood to be equal where they are   
not expressly named1 is true  where     
equal quotas have been contributed4 ,but
 in a ,,general partnership  the shares 
are not to be measured by what may arise
 from this or that  article1 but from   
the probable profits of the whole4      
,,xxiv4 ,in naval associations the      
common motive of utility is             
self-defence against pirates3 though    
they may sometimes be formed from  less 
worthy motives4 ,in computing the losses
 to be sustained by each1  it is usual  
to estimate the number of men1 the      
number of ships1 and the  quantity of   
merchandise protected4 ,and what has    
hitherto been said will  be found       
conformable to natural justice4         
,,xxv4 ,nor does the voluntary#cf law of
 nations appear to make any  alteration 
here4 ,however1 there is one exception1 
which is1 that where  equal terms have  

been agreed upon1 if no fraud has been  
used1 nor any  necessary information    
withheld1 they shall be considered as   
equal in  an external#cg point of view4 
,so that no action can be maintained  in
 a court for such inequality4 ,which was
 the case in the civil law  before      
,dioclesian's constitution4 ,so among   
those1 who are bound by the  law of     
nations alone1 there can be no redress  
or constraint on such  account4#ch      
,and this is the meaning of what        
,pomponius says1 that in a bargain and  
sale1 one man may ,,naturally overreach 
another3 an allowance which is  not to  
be construed1 as a right1 but is only so
 far a permission1 that  no legal remedy
 can be used against the person1 who is 
determined to  insist upon the          
agreement4    ,in this place1 as in many
 others1 the word natural signifies     
nothing  more than what is received by  
general custom4 ,in this sense the      
,apostle  ,paul has said1 that it is    
naturally disgraceful for a man to wear 

long  hair2 a thing1 in which there is  
nothing repugnant to nature1 but which  
is the general practice among some      
nations4 ,indeed many writers1 both     
sacred and profane1 give the name of    
,,natural to what is only ,,customary   
and ,,habitual4          ,,chapter      
,,xiii4    ,,on ,,oaths4      ,efficacy 
of oaths among ,pagans--,deliberation   
requisite in      oaths--,the sense1 in 
which oaths are understood to be taken1 
to      be adhered to--,to be taken     
according to the usual meaning of the   
words--,the subject of them to be       
lawful--,not to counteract moral        
obligations--,in what sense oaths are an
 appeal to ,god--,the purport      of   
oaths--,to be faithfully observed in all
 cases--,the controul      of sovereigns
 over the oaths of                      
subjects--,observations on our          
,saviour's prohibition of oaths--,forms 
substituted for oaths4      ,i4 ,the    
sanctity of an oath with regard to      
promises1 agreements1 and  contracts1   

has always been held in the greatest    
esteem1 in every age  and among every   
people4 ,for as ,sophocles has said in  
his ,hippodamia1  ,the soul is bound to 
greater caution by the addition of an   
oath4 ,for  it guards us against two    
things1 most to be avoided1 the reproach
 of  friends1 and the wrath of heaven4  
,in addition to which the authority  of 
,cicero may be quoted1 who says1 our    
forefathers intended that an  oath      
should be the best security for         
sincerity of affirmation1 and the       
observance of good faith4 ,for1 as he   
observes in another place1  there can be
 no stronger tie1 to the fulfilment of  
our word and  promise1 than an oath1    
which is a solemn appeal to the         
testimony of  ,god4    ,,ii4 ,the next  
point1 to be considered1 is the original
 force and extent  of oaths4    ,and in 
the first place the arguments1 that have
 been used respecting  promises and     
contracts1 apply to oaths also1 which   
ought never to be  taken but with the   

most deliberate reflection and judgment4
 ,nor can any  one lawfully take an     
oath1 with a secret intention of not    
being bound  by it4 ,for the obligation 
is an inseparable and necessary         
consequence  of an oath1 and every act  
accompanied with an obligation is       
supposed to  proceed from a deliberate  
purpose of mind4 ,every one is bound    
likewise  to adhere to an oath in that  
sense1 in which it is usually understood
  to be taken4 ,for an oath being an    
appeal to ,god1 should declare the  full
 truth in the sense in which it is      
understood4 ,and this is the  sense upon
 which ,cicero insists that all oaths   
should be performed and  adhered to in  
that sense1 in which the party imposing 
them intended  they should be taken4    
,for although in other kinds of promises
 a  condition may easily be implied1 to 
release the promiser2 yet that is a     
latitude by no means admissible in an   
oath4 ,and on this point an appeal  may 
be made to that passage1 where the      

admirable writer of the ,epistle  to the
 ,hebrews has said1 ,,god ,,willing more
 abundantly to shew unto the  heirs of  
the promise the immutability of his     
counsel confirmed it by an  oath3 that  
by two immutable things1 in which it was
 impossible for ,god  to deceive1 we    
might have a strong consolation4 ,in    
order to understand  these words1 we    
must observe that the sacred writers1 in
 speaking of  ,god1 often attribute to  
him human passions1 rather in conformity
 to  our finite capacities1 than to his 
infinite nature4 ,for ,god does not     
actually change his decrees1 though he  
may be said to do so1 and to  repent1   
whenever he acts otherwise than the     
words seemed to indicate1  the occasion1
 on which they were delivered1 having   
ceased4 ,now this  may easily be applied
 in the case of threats1 as conferring  
no right2  sometimes too in promises1   
where a condition is implied4 ,the      
,apostle  therefore names two things    
denoting immutability1 a promise which  

confers a right1 and an oath1 which     
admits of no mental reservations4       
,from the above arguments it is easy to 
comprehend what is to be thought  of an 
oath fraudulently obtained4 ,for if it  
is certain that a person  took the oath 
upon a supposition1 which afterwards was
 proved to have  no foundation1 and but 
for the belief of which he would never  
have  taken it1 he will not be bound by 
it4 ,but if it appears that he would    
have taken it without that supposition2 
he must abide by his oath1  because     
oaths allow of no evasion4    ,,iii4    
,the meaning of an oath should not be   
stretched beyond the usual  acceptation 
of words4 ,therefore there was no breach
 of their oath in  those1 who1 having   
sworn that they would not give their    
daughters in  marriage to the           
,benjamites1 permitted those that had   
been carried off  to live with them4    
,for there is a difference between      
giving a thing1  and not recovering that
 which is lost4    ,,iv4 ,to give       

validity to an oath1 the obligation1    
which it imposes ought  to be lawful4   
,therefore a sworn promise1 to commit an
 illegal act1 to  do any thing in       
violation of natural or revealed law1   
will be of no  effect4    ,v4 ,indeed if
 a thing promised upon oath be not      
actually illegal1 but  only an          
obstruction to some greater moral duty1 
in that case also the  oath will not be 
valid4 ,because it is a duty which we   
owe to ,god not to  deprive ourselves of
 the freedom of doing all the good in   
our power4    ,,vi4 ,oaths may differ in
 form1 and yet agree in substance4 ,for 
they all  ought to include an appeal to 
,god1 calling upon him to witness the   
truth1 or to punish the falsehood of    
their assertions1 both of which  amount 
to the same thing4 ,for an appeal to the
 testimony of a superior1  who has a    
right to punish1 is the same as         
requiring him to avenge an  act of      
perfidy4 ,now the omniscience of ,god   
gives him power to punish1  as well as  

to witness every degree of falsehood4   
,,vii4 ,it was a custom with the        
ancients to swear by persons or beings  
expressly distinct from the supreme     
creator1 either imprecating the  wrath  
of those by whom they swore1 whether it 
were the sun1 the  heavens1 or the      
earth2 or swearing by their own heads1  
by their  children1 their country or    
their prince1 and calling for           
destruction  upon ,,them1 if there were 
any falsehood in their oaths4    ,nor   
was this practice confined to ,heathen  
nations only1 but1 as we  are informed  
by ,philo1 it prevailed among the ,jews4
 ,for he says that  we ought not1 in    
taking an oath upon every occasion1 to  
have recourse  to the maker and father  
of the universe1 but to swear by our    
parents1  by the heavens1 the earth1 the
 universe4 ,thus ,joseph is said to have
  sworn by the life of ,pharaoh1        
according to the received custom of the 
,egyptians4 ,nor does our ,saviour1 in  
the fifth chapter of ,st4 ,matthew's    

,gospel1 intend1 as it is supposed by   
some1 to consider these oaths to  be    
less binding than those taken expressly 
by the name of ,god4 ,but  as the ,jews 
were too much inclined to make use of1  
and yet disregard  them1 he shews them  
that they are real oaths4 ,for1 as      
,ulpian has well  observed1 he who      
swears by his own life1 seems to swear  
by ,god1 bearing  a respect and         
reference to his divine power4 ,in the  
same manner ,christ  shews that he1 who 
swears by the temple1 swears by ,god who
 presides in  the temple1 and that he   
who swears by ,heaven1 swears by ,god1  
who sits  upon the ,heavens4 ,but the   
,jewish teachers of that day thought    
that men  were not bound by oaths made  
in the name of created beings1 unless   
some penalty were annexed1 as if the    
thing1 by which they swore1 were        
consecrated to ,god4 ,for this is the   
kind of oath implied in the word        
korban as ,,by ,a ,,gift4 ,and it is    
this error of theirs1 which  ,christ    

refutes4    ,,viii4 ,the principal      
effect of oaths is to cut short         
disputes4 ,an oath  for confirmation1 as
 the inspired writer of the ,epistle to 
the ,hebrews  has said1 is the end of   
all strife4 ,so too we find in ,diodorus
  ,siculus1 that an oath was regarded   
among the ,egyptians as the surest      
pledge of sincerity that men could give4
 ,so that every one1 in taking  an oath1
 should express the real purpose of his 
mind1 and render his  actions           
conformable to those expressions4 ,there
 is a beautiful passage  on this        
subject1 in ,dionysius of               
,halicarnassus1 who says1 the last      
pledge among men1 whether ,greeks or    
,barbarians1 and it is a pledge1  which 
no time can blot out1 is that which     
takes the ,gods1 as witnesses  to oaths 
and covenants4    ,,ix4 ,the substance  
of an oath too should be such1 and      
conceived in such  words1 as to include 
not only the divine1 but the human      
obligations1  which it implies4 ,for it 

should convey to the person1 who        
receives it1  the same security for his 
right1 as he would derive from an       
express  promise or a contract4 ,but if 
either the words bear no reference to a 
person so as to confer upon him a right1
 or if they do refer to him but  in such
 a manner that some opposition may be   
made to his claim1 the  force of the    
oath will1 in that case1 be such as to  
give that person no  right from it2 yet 
he who has taken it must still submit to
 the divine  obligation1 which the oath 
imposes4 ,an example of which we have in
 a  person1 from whom a sworn promise   
has been extorted by fear4 ,for here    
the oath conveys no right1 but what the 
receiver ought to relinquish1  for it   
has been obtained to the prejudice of   
the giver4 ,thus we find  the ,hebrew   
,kings were reproved by the prophets1   
and punished by ,god for  not observing 
the oaths1 which they had taken to the  
kings of ,babylon4    ,x4 ,the same rule
 applies not only to transactions       

between public  enemies1 but to those   
between any individuals whatsoever4 ,for
 he1 to  whom the oath is taken1 is not 
the only person to be considered2 but  a
 solemn regard must be paid to ,god1 in 
whose name the oath is taken1  and who  
possesses authority to enforce the      
obligation4 ,for which reason  it is    
impossible to admit the position of     
,cicero1 that it is no breach  of an    
oath to refuse paying to robbers the sum
 stipulated for having  spared one's    
life2 because such men are not to be    
ranked in the number  of lawful enemies1
 but treated as the common enemies of   
all mankind1 so  that towards them no   
faith ought to be kept1 nor even the    
sanctity of  an oath observed4    ,,xi4 
,the power of superiors over inferiors1 
that is of sovereigns over  subjects1   
with respect to oaths1 is the next topic
 that comes under  consideration4 ,now  
the act of a superior cannot annul the  
perfect  obligation of an oath1 which   
rests upon natural and revealed law4    

,but  as we are not1 in a state of civil
 society1 entirely masters of our  own  
actions1 which in some measure depend   
upon the direction of the  sovereign    
power1 which has a twofold influence    
with respect to oaths1  in the one case 
applying to the person who takes1 and in
 the other1 to  the person who receives 
them4 ,this authority may be exercised  
over the  person taking the oath1 either
 by declaring1 before it is taken1 that 
it shall be made void1 or by prohibiting
 its fulfilment1 when taken4  ,for the  
inferior or subject1 considered as such1
 could not bind himself  to engagements1
 beyond those allowed by the sovereign  
legislature4 ,in  the same manner1 by   
the ,hebrew ,law1 husbands might annul  
the oaths of  wives1 and fathers those  
of children1 who were still dependent4  
,,xii4 ,in this place we may cursorily  
observe1 that what is said in the       
precepts of ,christ1 and by ,st4 ,james1
 against swearing at all1 applies  not  
to an oath of affirmation1 many         

instances of which are to be  found in  
the writings of ,st4 ,paul1 but to      
promissory oaths respecting  uncertain  
and future events4 ,this is plain from  
the opposition in the  words of ,christ4
 ,you have heard it hath been said by   
them of old time1  thou shalt not       
forswear thyself1 but shalt perform unto
 the ,lord thine  oath4 ,but ,i say to  
you1 swear not at all4 ,and the reason  
given for  it by ,st4 ,james1 is that   
you fall not into hypocrisy1 or be found
  deceivers2 for so the word ,,hypocrisy
 signifies in the ,greek4    ,again it  
is said by ,st4 ,paul1 that all the     
promises of ,god in ,christ  are ,,yea  
and ,,amen1 that is are certain and     
undoubted4 ,hence came the  ,hebrew     
phrase1 that a just man's ,,yea is      
,,yea1 and his ,,no is ,,no4 ,on the    
other hand1 persons1 whose actions      
differ from their affirmations1  are    
said to speak ,,yea and ,,no1 that is   
their affirmation is a denial1  and     
their denial an affirmation4 ,in this   

manner ,st4 ,paul vindicates  himself   
from the charge of lightness of speech1 
adding that his  conversation had not   
been ,,yea1 and ,,no4    ,,xiii4        
,affirmations are not the only modes of 
obligation4 ,for in many  places signs  
have been used as pledges of faith2 thus
 among the  ,persians giving the right  
hand was considered the firmest tie4 ,so
 that  where any form is substituted for
 an oath1 the violation of it will be   
an act of perjury4 ,it has been said of 
,kings and ,princes in particular1  that
 their faith is the same as an oath4 ,on
 which account ,cicero1 in  his speech  
for ,dejotarus1 commends ,caesar no less
 for the vigour of his  arm in battle1  
than for the sure fulfilment of the     
pledge and promise  of his right hand4  
,,chapter ,,xv4#ci    ,,on ,,treaties   
,,and ,,on ,,engagements ,,made ,,by    
,,delegates1 ,,exceeding ,,their        
,,power4      ,public                   
,conventions--,divided into treaties1   
engagements1 and other                  

compacts--,difference between treaties  
and the engagements made      by        
delegates exceeding their               
powers--,treaties founded on the        
law of nature--,their origin--,treaties 
founded on still more      extensive    
principles--,treaties with those1 who   
are strangers to      the true religion1
 prohibited neither by the ,jewish nor  
,christian      law--,cautions          
respecting such treaties--,christians   
bound to unite      against the enemies 
of the ,christian religion--,among a    
number      of ,allies in war1 which of 
them have the first pretensions to      
assistance--,tacit renewal of           
treaties--,the effect of perfidy in one 
of the contracting parties              
considered--,how far the unauthorized   
engagements of delegates are binding1   
when the sovereigns refuse      to      
ratify them--,the ,caudian ,convention  
considered--,whether the      knowledge 
and silence of the ,sovereign makes     
those unauthorized      conventions     

binding--,the ,convention of ,luctatius 
considered4      ,i4 ,ulpian has divided
 conventions into two kinds1 public and 
private1  and he has not explained a    
public convention upon the usual        
principles1  but has confined it to a   
treaty of peace1 which he alleges as his
  first example1 and he has made use of 
the engagements entered into  by the    
generals of two contending powers1 as an
 instance of private  conventions4 ,by  
public conventions therefore he means   
those1 which  cannot be made but by the 
authority and in the name of the        
sovereign  power1 thus distinguishing   
them not only from the private contracts
  of individuals1 but ,,also from the   
,,personal contracts of sovereigns      
themselves4 ,and indeed private injuries
 and contracts1 no less than  public    
treaties frequently prove the origin of 
wars4 ,and as private  contracts have   
been already so amply discussed1 the    
higher order  of contracts1 which come  
under the denomination of treaties1 will

  necessarily form the leading part in  
our farther inquiries4    ,,ii4 and     
,,iii4 ,now public conventions may be   
divided into treaties1  engagements1 and
 other compacts4    ,the ninth book of  
,livy may be consulted on the           
distinction between  treaties and       
engagements1 where the historian informs
 us1 that treaties  are those contracts1
 which are made by the express authority
 of the  sovereign power1 and in which  
the people invoke the divine vengeance  
on their heads1 if they violate their   
engagements4 ,among the ,romans  the    
persons employed in declaring war and   
making peace1 were in  the conclusion of
 these solemn treaties1 always          
accompanied by the  principal herald1   
who took the oath in the name of the    
whole people4  ,a sponsio1 or           
,,engagement1 is what was made by       
persons1 who had no  express commission 
for that purpose from the sovereign     
power1 and whose  acts consequently     
required a further ratification from the

 sovereign  himself4#dj    ,the ,senate 
of ,rome1 we are informed by ,sallust1  
judged very properly in  passing a      
decree1 that no treaty could be made    
without their consent  and that of the  
people4 ,livy relates that ,hieronymus1 
king of ,syracuse1  having entered into 
a convention with ,hannibal1 sent       
afterwards to  ,carthage to have it     
converted by the state into a league4   
,for which  reason ,seneca the elder has
 said1 applying the expression to       
persons  invested with a special        
commission for that purpose1 that a     
treaty1  negotiated by the general1     
binds the whole of the ,roman people1   
who are  supposed to have made it4      
,but in monarchies1 the power of making 
treaties belongs to the king  alone1 a  
maxim which the language of poetry1 no  
less than the records  of history1 shews
 to have been held in all ages4         
,euripides1 whose  sentiments are always
 conformable to nature1 and popular     
opinion1 in  his ,tragedy of the        

,suppliants1 says1 ,it rests with       
,adrastus to take  the oath1 to whom1 as
 sovereign1 the sole right of binding   
the country  by treaties belongs4    ,no
 subordinate magistrates have such a    
power of binding the people2 nor  will  
the acts of a smaller portion bind the  
greater1 an argument used  in favour of 
the ,romans against the ,gauls4 ,for    
there was a majority of  the people with
 ,camillus1 the dictator4    ,but it    
remains to be considered how far the    
acts of those1 who have  engaged for the
 people1 without any public authority1  
are binding4  ,perhaps it may be said   
that the contracting parties have       
discharged  their responsibility when   
they have done all in their power       
towards the  fulfilment of their        
obligation4 ,that might be the case in  
promises1 but  the obligation in public 
contracts is of a stricter kind4 ,for   
the party  contracting requires         
something in return for the engagements 
he makes4  ,hence the civil law1 which  

rejects all promises made by one person 
for  the performance of some act by     
another1 renders him who engages for the
  ratification of a thing liable to pay 
damages and interest4    ,,iv4 ,the most
 accurate distinction in treaties1 is   
that which makes the  foundation of some
 rest purely upon the law of nature1 and
 others upon  the obligations1 which men
 have either derived from the law of    
nature1  or added to it4 ,treaties of   
the former kind are1 in general1 made1  
not  only between enemies1 as a         
termination of war2 but in ancient times
  were frequently made1 and1 in some    
degree1 thought necessary among men  in 
the formation of every contract4 ,this  
arose from that principle in  the law of
 nature1 which established a degree of  
kindred among mankind4  ,therefore it   
was unlawful for one man to be injured  
by another4 ,and  this natural justice  
universally prevailed before the deluge4
 ,but after  that event1 in process of  
time1 as evil dispositions and habits   

gained  ground1 it was by degrees       
obliterated4 ,so that one people's      
robbing and  plundering another1 even   
when no war had been commenced or       
declared1  was deemed lawful4           
,epiphanius calls this the ,scythian    
fashion4 ,nothing  is more frequent in  
the writings of ,homer than for men to  
be asked1 if  they are robbers8 ,a      
question1 as ,thucydides informs us1 by 
no means  intending to convey reproach1 
but purely for information4 ,in an      
ancient  law of ,solon's mention is made
 of companies formed for robbery3 and1  
we  find from ,justin1 that1 till the   
times of ,tarquin1 piracy was attended  
with a degree of glory4    ,in the law  
of the ,romans it was a maxim1 that     
nations1 which had not  entered into    
terms of amity1 or into treaties with   
them were not to  be considered as      
enemies4 ,but if any thing belonging to 
the ,romans  fell into their hands1 it  
became theirs2 or any citizen of ,rome1 
taken by them1 became a slave2 and the  

,romans would treat any person          
belonging to that nation1 in the same   
manner4 ,in this case the right  of     
postliminium#da is observed4 ,so at a   
remote period1 before the  times of the 
,peloponnesian war1 the ,corcyraeans    
were not considered  as enemies by the  
,athenians1 though there was no treaty  
of peace  subsisting between them1 as   
appears from the speech of the          
,corinthians  given by ,thucydides4     
,aristotle commends the practice of     
plundering  barbarians1 and in ancient  
,latium an enemy signified nothing but a
  foreigner4    ,in the class of        
treaties referred to in this section may
 be ranked  those made between different
 states for the mutual preservation of  
the  rights of hospitality and commerce1
 as far as they come under the law  of  
nature4 ,arco makes use of this         
distinction1 in his speech to the       
,achaeans1 as reported by ,livy1 where  
he says he does not require an          
offensive and defensive alliance1 but   

only such a treaty as may secure  their 
rights from infringement by each other1 
or prevent them from  harbouring the    
fugitive slaves of the ,macedonians4    
,conventions of this  kind were called  
by the ,greeks1 strictly speaking1      
,,peace in opposition  to ,,treaties4   
,v4 ,treaties founded upon obligations  
added to those of the law of  nature are
 either equal1 or unequal4 ,equal       
treaties are those1 by  which equal     
advantages are secured on both sides4   
,the ,greeks call them  ,,alliances1 and
 sometimes alliances upon an equal      
scale4 ,but treaties  of the latter kind
 are more properly leagues than         
treaties1 and where  one of the parties 
is inferior in dignity1 they are called 
,,injunctions1  or ,,injunctions        
,,annexed ,,to ,,covenants4 ,demosthenes
 in his speech on  the liberty of the   
,rhodians says1 all nations ought to    
guard against  forming such leagues1 as 
approaching too near to servitude4      
,treaties of both kinds1 whether of     

peace or alliance are made from  motives
 of some advantage to the parties4 ,by  
equal treaties of peace1  the           
restoration of prisoners1 the           
restoration or cession of conquered     
places1 and other matters providing for 
its due maintenance1 are  settled1 a    
subject that will be more fully treated 
of hereafter1 in  stating the effects   
and consequences of war4 ,treaties of   
alliance upon  equal conditions relate  
either to commerce1 or to contributions 
for the  joint prosecution of a war1 or 
to other objects of equal importance4   
,equal treaties of commerce may vary in 
their terms4 ,for instance it  may be   
settled that no duties shall be imposed 
upon the goods of the  subjects1        
belonging to each of the contracting    
powers3 or that the  duties upon their  
respective commodities shall be lower   
than the duties  upon those of any other
 nation4 ,the first of these examples   
may be  found in an ancient treaty      
between the ,romans and ,carthaginians1 

in  which there is a clause1 making an  
exception of what is given to the       
notary and public crier4 ,or it may be  
settled that no higher duties  than     
those existing at the time the treaty is
 made shall be imposed1 or  that they   
shall not be augmented beyond a certain 
rate4    ,so in alliances of war the    
contracting parties are required to     
furnish equal numbers of troops or      
ships1 a kind of alliance which1  as    
,thucydides explains it1 calls upon the 
united powers to hold the  same states  
for common enemies or friends3 we find1 
in many parts  of ,livy1 alliances of   
this description among states1 for the  
mutual  defence of their territories or 
for the prosecution of some particular  
war1 or against some particular enemy1  
or against all states excepting  their  
respective allies4 ,polybius has given a
 treaty of this kind1  made between the 
,carthaginians and ,macedonians4 ,in the
 same manner  the ,rhodians bound       
themselves by treaty to assist ,atigonus

 ,demetrius  against all enemies except 
,ptolemy4 ,there are other objects too  
for  which equal treaties are made4     
,thus one power may bind another to     
build  no forts in their neighbourhood  
which might prove an annoyance1 to give 
no encouragement to rebellious subjects1
 to allow the troops of an  enemy no    
passage through their country4    ,,vi4 
,from equal treaties1 the nature of     
unequal treaties may easily  be         
understood4 ,and where two powers       
contract1 this inequality may  be on the
 side either of the superior1 or of the 
inferior power4  ,a superior power may  
be said to make an unequal treaty1 when 
it  promises assistance without         
stipulating for any return1 or gives    
greater advantages than it engages to   
receive4 ,and on the part of the        
inferior power this inequality subsists 
when1 as ,isocrates says in his         
,,panegyric1 her privileges are unduly  
depressed2 so that engagements of  this 
kind may be called injunctions or       

commands rather than treaties4  ,and    
these may1 or may not1 be attended with 
a diminution of their  sovereign power4 
,such a diminution of sovereign power   
followed the second treaty between  the 
,carthaginians and ,romans1 by which the
 former were bound to make  no war but  
with the consent of the ,roman people2  
so that from that  time1 ,appian says1  
the ,carthaginians were compelled by    
treaty to comply  with the humour of the
 ,romans4 ,to this kind may be added a  
conditional  surrender1 except that it  
leads not to a ,,diminution1 but to an  
,,entire  ,,transfer of the sovereign   
dignity and power4    ,,vii4 ,the       
burdens attached to unequal treaties1   
where no diminution of  sovereignty     
takes place1 may be either transitory or
 permanent4    ,,transitory burdens are 
those1 by which the payment of certain  
sums of  money is imposed1 the          
demolition of certain works and         
fortifications1  the cession of certain 
countries and the delivery of ships or  

hostages  are required4 ,but ,,permanent
 conditions are those1 which require the
  tribute of homage and submission from 
one power to another4    ,nearly        
approaching to such treaties are those1 
by which one power is  debarred from    
having any friends or enemies1 but at   
the pleasure of  another1 or from       
allowing a passage and supplies to the  
troops of any  state1 with whom that    
power may be at war4 ,besides these     
there may be  conditions of an inferior 
and less important kind2 such as those1 
which  prohibit the building of forts in
 certain places2 maintaining armies1  or
 having ships beyond a certain number2  
navigating certain seas1 or  raising    
troops in certain countries2 attacking  
allies or supplying  enemies4 ,some     
conditions indeed go so far as to       
prohibit a state from  admitting        
refugees1 and to demand annulling all   
former engagements with  every other    
power4 ,numerous examples of such       
treaties are to be found  in historians 

both ancient and modern4    ,unequal    
treaties may be made not only between   
the conquerors and the  conquered but   
also between mighty and impotent states1
 between whom no  hostilities have ever 
existed4    ,,viii4 ,in considering     
treaties1 it is frequently asked1       
whether it be  lawful to make them with 
nations1 who are strangers to the       
,christian  religion2 a question1 which1
 according to the law of nature1 admits 
not  of a doubt4 ,for the rights1 which 
it establishes1 are common to all men   
without distinction of religion4    ,the
 gospel has made no change in this      
respect1 but rather favours  treaties1  
by which assistance in a just cause may 
be afforded even to  those1 who are     
strangers to religion4 ,for to embrace  
opportunities of  doing good to all men 
is not only permitted as laudable1 but  
enjoined  as a precept4 ,for in         
imitation of ,god1 who makes his sun to 
rise upon  the righteous and the wicked1
 and refreshes them both with his       

gracious  rain1 we are commanded to     
exclude no race of men from their due   
share  of our services4 ,yet1 in equal  
cases1 it admits of no doubt1 that those
  within the pale of our own religious  
communion have a preferable claim  to   
our support4    ,,ix4 ,in addition to   
the foregoing arguments we may observe  
that as all  ,christians are considered 
as members of one body1 which are       
required to  feel for the pains and     
sufferings of each other1 this precept  
applies  not only to individuals1 but to
 nations and kings in their public      
capacity4 ,for the rule of duty is not  
to be measured by the inclination  of   
individuals1 but by the injunctions of  
,christ4 ,and in some cases  the ravages
 of an impious enemy can only be opposed
 by a firm alliance  among ,christian   
kings1 and governments4 ,and it is a    
duty from which  nothing1 but inevitable
 necessity1 and their immediate         
attention being  engrossed by the       
prosecution of other wars1 can excuse   

them4    ,x4 ,another question          
frequently arises1 which is1 when two   
states are  engaged in war with each    
other1 to which of them a power1 equally
  allied to both1 ought in preference to
 give assistance4 ,here too we  must    
observe there can be no obligation to   
support unjust wars4 ,on  which account 
that confederate power1 which has       
justice on its side1  will have a claim 
to preference1 if engaged in war with   
another not  comprehended in the number 
of confederates1 or even if engaged with
 one  of the confederates themselves4   
,but if two powers engage in a war1     
equally unjust on both sides1 a  third  
power1 united in confederacy with both1 
will prudently abstain  from            
interference4 ,again1 if two powers     
allied to us are engaged in  a just war 
against others1 with whom we have no    
connection2 in the  supplies of men or  
money that we furnish to either we ought
 to follow  the rule1 observed in the   
case of personal creditors4#db    ,but  

if personal assistance1 which cannot be 
divided1 is required of the  contracting
 party1 in that case the preference must
 be given to the  engagements of the    
longest standing4 ,however the case of a
 subsequent  treaty1 which makes the    
engagements of a more binding and       
extensive  nature1 will form an         
exception to this rule4    ,,xi4 ,the   
tacit renewal of a treaty ought not to  
be presumed upon at the  expiration of  
the period1 limited for its continuance1
 unless certain  acts be performed1     
which can expressly be construed as a   
renewal of it1  and can be taken in no  
other sense4    ,,xii4 ,if one of the   
parties violates a treaty1 such a       
violation releases  the other from its  
engagements4 ,for every clause has the  
binding force  of a condition4 ,and as  
an example of this1 a passage from      
,thucydides  may be quoted1 where that  
historian says that for one power to    
accede  to a new confederacy1 and to    
desert an ally who has neglected to     

fulfil his engagements1 is no breach of 
a treaty2 but not to assist  another    
power in conformity to sworn engagements
 amounts to a violation  thereof4 ,and  
this is generally true1 except where it 
has been agreed  to the contrary1 that a
 treaty shall not be null and           
relinquished for  trifling disgusts and 
miscarriages4    ,,xiii4 ,conventions   
are as various and numerous as treaties1
 and the  distinction made between them 
is owing more to the difference of power
  in those by whom they are made1 than  
to any real difference in their  own    
nature4 ,but there are two particular   
points of inquiry materially  connected 
with all conventions1 the first of which
 relates to the  extent of the          
negotiator's obligation1 when the       
sovereign or the  state refuses to      
ratify a convention1 whether he is bound
 to make an  indemnity to the other     
party for the disappointment1 to restore
 things  to the situation they were in  
before he treated1 or to deliver up his 

own person4 ,the first opinion seems    
conformable to the ,roman civil law1    
the second to equity as it was urged by 
the tribunes of the people1 ,l4         
,livius1 and ,j4 ,melius1 in the dispute
 about the peace of ,caudium2#dc  but   
the third is that most generally        
adopted1 as was done respecting  the two
 famous conventions of ,caudium and     
,numantia4 ,but there is one  caution   
particularly to be observed1 and that   
is1 that the sovereign is  no way bound 
by such unauthorised conventions1 until 
he has ratified  them4 ,in the          
convention alluded to1 if the ,samnites 
had intended to  bind the ,roman people1
 they should have retained the army at  
,caudium1  and sent ambassadors to the  
senate and people at ,rome1 to discuss  
the  treaty1 and learn upon what terms  
they chose to redeem their army4        
,,xiv4 ,another question is1 whether the
 knowledge and silence of the  sovereign
 bind him to the observance of a        
convention4 ,but here it is  necessary  

to make a distinction between an        
absolute convention1 and  one made upon 
condition of its being ratified by the  
sovereign4 ,for as  all conditions ought
 to be literally fulfilled1 such a      
condition1 on  failure of fulfilment1   
becomes void4    ,this principle was    
very properly observed in the convention
 made  between ,luctatius and the       
,carthaginians2 to which the people     
refused  to accede1 as it had been made 
without their consent4#dd ,a new treaty 
therefore was made by public authority4 
,the next thing to be considered is1    
whether there may not be some act  of   
consent besides silence4 ,for without   
some visible act1 silence is  not of    
itself sufficient to warrant a probable 
conjecture of intention4  ,but if       
certain acts are done which can be      
accounted for upon no other  grounds    
than those of consent1 they are supposed
 to ratify a treaty4  ,thus if the      
convention of ,luctatius had contained  
many clauses1 some of  them             

relinquishing certain rights1 and those 
clauses had been always  duly observed  
by the ,romans1 such observance would be
 justly taken for  a ratification of the
 treaty4          ,,chapter ,,xvi4      
,,the ,,interpretation ,,of ,,treaties4 
,the external obligation of             
promises--,words where other conjectures
      are wanting to be taken in their  
popular meaning--,terms of art      to  
be interpreted according to the         
acceptation of the learned in      each 
art1 trade1 and science--,conjectures   
requisite to explain      ambiguous or  
seemingly contradictory                 
terms--,interpretation      of treaties 
from the subject-matter--,from          
consequences1 from      circumstances   
and connection--,conjectures taken from 
motives--,the      more strict or more  
extensive interpretation--,treaties     
favourable1      odious1 mixed or       
indifferent--,the good faith of kings   
and nations      in treaties of equal   
validity with law--,rules of            

interpretation      formed from the     
above named distinctions--,whether the  
word      allies1 in a treaty1 is       
limited to those1 who were such at the  
time of making it1 or applies to all who
 are1 or hereafter may      become      
such--,interpretation of the prohibition
 of one party's      making war without 
the consent or injunction of the        
other--,of the      freedom granted to  
,carthage--,distinction between personal
 and      real treaties--,a treaty made 
with a king continues even during       
his expulsion by an usurper1 such a     
treaty extends not to an                
invader--,what kind of promises ought to
 have the preference--,the      extent  
of obvious conjectures--,the performance
 of a commission      by doing something
 equivalent--,interpretation restricted 
more      closely than the bare         
signification of the words              
implies--,from      an original defect  
of intention--,from failure of the sole 
motive--,from a defect in the           

subject--,observations on the last      
named conjectures--,emergencies         
repugnant to the original intention1    
by rendering it unlawful or             
burdensome--,conjectures taken from     
a comparison of one part of the writings
 with another--,rules to      be        
observed--,in dubious cases1 writings   
not absolutely requisite      to the    
validity of a contract--,contracts of   
,sovereigns not      to be interpreted  
by the ,roman law--,whether the words of
 the      person accepting or offering  
the engagement ought to be most         
regarded--,this explained by a          
distinction4      ,i4 ,if we consider   
the promiser alone1 he is naturally     
bound to fulfil  his engagements4 ,good 
faith1 observes ,cicero1 requires that a
 man  should consider as well what he   
intends1 as what he says4 ,but as acts  
of the mind are not1 of themselves      
visible1 it is necessary to fix upon    
some determinate mark1 to prevent men   
from breaking their engagements1  by    

allowing them to affix their own        
interpretation to their words4  ,it is a
 right1 which natural reason dictates1  
that every one who  receives a promise1 
should have power to compel the promiser
 to do  what a fair interpretation of   
his words suggests4 ,for otherwise it   
would be impossible for moral           
obligations to be brought to any certain
  conclusion4 ,perhaps it was in this   
sense that ,isocrates1 treating of      
agreements1 in his prescription against 
,callimachus1 maintains that  the laws  
enacted on this subject are the common  
laws of all mankind1  not only ,greeks1 
but barbarians also4 ,it is for this    
very reason1 that  specific forms have  
been assigned for treaties1 which are to
 be drawn  up in terms of unequivocal   
and certain meaning4 ,the proper rule of
  interpretation is to gather the       
intention of the parties pledged1 from  
the most probable signs4 ,and these are 
of two kinds1 namely1 words and         
conjectures1 which may be considered    

either separately1 or together4    ,,ii4
 ,where we have no other conjecture to  
guide us1 words are not to be  strictly 
taken in their original or grammatical  
sense1 but in their  common acceptation1
 for it is the arbitrary will of custom1
 which  directs the laws and rules of   
speech4#de ,it was a foolish act of     
perfidy therefore in the ,locrians1 when
 they promised they would adhere  to    
their engagements as long as they stood 
upon that soil1 and bore  those heads   
upon their shoulders1 in order to evade 
their promise to  cast away the mould1  
which they had previously put within    
their shoes1  and the heads of garlick1 
which they had laid upon their          
shoulders4  ,acts of treachery like     
these1 ,cicero1 in the third book of his
 ,offices1  has properly observed1      
instead of mitigating1 tend to aggravate
 the  guilt of perjury4    ,,iii4 ,in   
terms of art which are above the        
comprehension of the general  bulk of   
mankind1 recourse1 for explanation1 must

 be had to those1 who  are most         
experienced in that art2 thus from      
consulting legal writers1  we may       
conceive the nature of particular       
crimes1 or from the pages of  the same  
authors1 derive our notions of sovereign
 power4    ,it is a just remark of      
,cicero's1 that the language of logic is
 not  that of daily and familiar        
intercourse3 the writers of that class  
have  phrases peculiar to themselves3   
which indeed is the case with arts  of  
every description4 ,so in treaties1     
where military arrangements  occur1 an  
army is defined to be a number of       
soldiers capable of ,,openly  invading a
 foreign1 or an enemy's country4 ,for   
historians everywhere  make a           
distinction between the private         
incursions of robbers1 and  what is done
 by a lawful and regular army4 ,what    
constitutes an army  must be therefore  
judged of by the enemy's force4 ,cicero 
defines an  army to consist of six      
legions and auxiliaries4 ,polybius says1

 that a  ,roman army in general amounted
 to sixteen thousand ,romans1 and twenty
  thousand auxiliaries4 ,but a military 
force might be composed of a less       
number of troops than this4 ,in the same
 manner the number of ships  sufficient 
for any purpose will amount to a fleet1 
and a place able to  hold out against an
 enemy may be called a fort4    ,,iv4   
,it is necessary to make use of         
conjecture1 where words or sentences    
admit of many meanings3 ,a mode of      
expression when included in one word1   
is called by ,logicians1 a synonymous   
term1 and1 when extending to two  or    
more words1 a doubtful phrase4 ,in the  
same manner it is necessary  to have    
recourse to conjecture whenever a       
seeming contradiction occurs  in the    
expressions of a treaty4 ,for in that   
case we must try to  discover such      
conjectures1 as will reconcile1 if      
possible1 one part  with another4 ,for  
if there be an evident contradiction1   
the contracting  parties by their latter

 determinations1 must have intended to  
abrogate  their former2 as no one can   
design to make contradictory resolutions
  at the same time4 ,indeed all acts    
depending upon the human will1 as  in   
the case of laws and testaments1 which  
depend upon the will of one  party1 and 
in contracts and treaties1 which depend 
upon that of two or  more1 all these    
acts are liable to changes1 with a      
subsequent change  of will in the       
parties concerned4 ,in all such cases   
any obscurity in  the language obliges  
us to have recourse to conjectures1     
which are  sometimes so obvious1 as to  
point out a meaning directly contrary to
  that of the words in their usual      
acceptation4 ,now the principal sources 
of conjecture are to be found in the    
subject-matter1 the consequences1  and  
the circumstances and connection4    ,v4
 ,from the subject or matter1 as for    
instance1 in the word day4 ,thus  if a  
truce be made for thirty days1 here     
civil and not natural days are          

meant4#df    ,so the word donation is   
sometimes used to signify a transfer1   
according  to the nature of the         
business4 ,in the same manner too the   
word  arms1 which in general signifies  
military instruments1 is sometimes      
applied to troops1 and may be taken in  
either sense1 according to the          
particular occasion4 ,every             
interpretation must be given according  
to  the intention understood4 ,thus the 
promise of a free passage given  upon   
the evacuation of a town1 implies also  
that the troops shall pass  without     
molestation4 ,if a number of ships are  
to be given up1 perfect  and not        
mutilated ships are meant4 ,and in all  
similar cases a similar  judgment must  
be formed according to the natural tenor
 of the words4    ,,vi4 ,another source 
of interpretation is derived from the   
consequences1  especially where a clause
 taken in its literal meaning would lead
 to  consequences foreign or even       
repugnant to the intention of a treaty4 

,for in an ambiguous meaning such an    
acceptation must be taken as will  avoid
 leading to an absurdity or             
contradiction4 ,the cavil of ,brasidas  
therefore is highly abominable1 who1    
promising that he would evacuate  the   
,boeotian territory1 said he did not    
consider that as ,boeotian  territory1  
which he occupied with his army2 as if  
the ancient bounds  were not intended1  
but only what remained unconquered1 an  
evasion1  which entirely annulled the   
treaty4    ,,vii4 ,from the             
circumstances or context another source 
of interpretation  is derived4 ,no      
inconsiderable light may be thrown upon 
the meaning  of an expression from the  
circumstance of its being used by the   
same  person to express the same        
intentions on other similar occasions1  
and  from its relation to what goes     
before1 and what follows the place1     
where it stands4 ,for in all doubtful   
cases1 we have reason to suppose  that  
the contracting parties mean to be      

consistent with their former  opinions  
and intentions4 ,thus in ,homer1 in the 
agreement between ,paris  and ,menelaus1
 that ,helen should be given up to the  
conqueror1 when  compared with what     
follows1 it is evident that by the      
conqueror is  meant the combatant1 who  
killed the other4 ,this rule of         
interpretation1  ,plutarch illustrates  
by the conduct of judges1 who passing by
 what is  obscure rest their decisions  
upon clear and unambiguous points4      
,,viii4 ,as to the motives1 which are   
sometimes taken for a rule of           
interpretation1 there may be other      
substantial ones1 besides those         
immediately expressed1 for the passing  
of a law or the making of a  treaty4    
,yet the strongest conjecture is that   
which arises from certain  proof that   
the will was actuated by some reason1   
operating as a sole  and sufficient     
motive4 ,for there are frequently ,,many
 motives1 and  sometimes the will is    
influenced by its own choice independent

 of any  other reason4 ,in the same     
manner a grant made1 in contemplation of
 a  marriage1 will be void1 if the      
marriage never takes place4    ,,ix4 ,it
 is further to be observed that many    
words have a variety of  acceptations1  
some more limited and others more       
extensive2 which may  be owing either to
 the application of a general name to a 
particular  class of things1 as in the  
words kindred and adoption2 or to the   
use  of masculines to express animals   
both of the male and female kind1  where
 nouns of a common gender are wanting4  
,in terms of art too1 words  are often  
taken in a metaphorical or extended     
sense3 thus in the civil  law death     
signifies banishment2 but in its popular
 acceptation a  dissolution of the parts
 of the natural body4    ,x4 ,in        
promises likewise1 some things are of a 
favourable1 some an  odious1 and others 
of a mixed or indifferent description4  
,favourable  promises are those which   
contain an equality of terms1 or which  

bear  some relation to the common good1 
the magnitude and extent of which       
increases the favour of the promise3 so 
that all engagements more  conducive to 
peace than to war are to be considered  
as those of a  favourable complexion1   
and alliances for mutual defence are    
always  regarded as a more laudable     
object than those for offensive war4    
,treaties of an odious kind are those   
which lay greater burdens on one  party 
than on the other1 which contain        
penalties for non-performance1  or which
 lead to an abrogation or infraction of 
former treaties4  ,whereas1 though      
engagements of a mixed nature may create
 a deviation  from former treaties1 they
 may be taken either in a favourable or 
odious light1 according to the          
magnitude1 or object of the change      
produced4 ,if it be for the sake of     
peace1 it is better1 taking all         
circumstances into consideration1 to    
rank them with those of a  favourable   
kind4    ,,xi4 ,the distinction made by 

the ,roman law between acts of equity   
and those of strict justice1 cannot     
,,generally be applied to the law  of   
nations1 though it may in some cases be 
adopted4 ,thus in any  transaction      
between the subjects of two countries1  
in each of which the  same form of legal
 proceeding is observed1 the parties are
 supposed to  treat without any         
intention of deviating from the common  
rule and form1  unless they have        
expressly determined to the contrary4   
,but in acts for  which no common rule  
is prescribed1 as in donations and free 
promises1  there the parties are        
supposed to treat according to the      
strict letter  of the agreement4        
,,xii4 ,after the establishment of the  
former positions1 the subject  naturally
 proceeds to the rules themselves1 which
 are to be observed  in the             
interpretation of treaties4 ,and in the 
first place we may  remark1 that in     
things1 which are not of an odious      
nature1 words are  to be taken strictly 

in their popular meaning1 and where they
 admit of  exceptions1 or have more     
significations than one1 it is lawful to
 use  that which is most extensive4 ,as 
it has been already observed1 that  both
 ,logicians and ,grammarians frequently 
use particular terms in a  general      
sense4 ,thus ,cicero in pleading for    
,caecina1 justly maintains  that the    
interlocutory decree1 ordering ,,that   
,,the ,,person ,,ejected ,,from  ,,his  
,,inheritance ,,should ,,be ,,reinstated
 ,,in ,,the ,,possession1 implies not   
only an ejectment1 but extends to any   
forcible prevention of the  owner's     
taking possession4    ,in things of a   
favourable nature1 if the parties       
engaged are acquainted  with the legal  
principles1 upon which they proceed1 or 
rest upon the  judgment of those who are
 so1 the words used may be taken in     
their most  extensive signification1    
including even terms of art and of      
law4#dg  ,again1 we must never have     
recourse to a metaphorical              

interpretation1  except where the       
literal meaning would lead to a direct  
absurdity1 or  would defeat the         
intention of a treaty4    ,on the other 
hand a passage may be interpreted in a  
more limited  signification1 than the   
words themselves bear1 if such          
interpretation  be necessary1 to avoid  
injustice or absurdity4 ,if no such     
necessity  exist1 but equity or utility 
manifestly require a restriction to the 
literal meaning1 it must be most rigidly
 adhered to1 except where  circumstances
 compel us to do otherwise4 ,but in     
things of an odious  nature a figurative
 expression may be allowed in order to  
avoid  inconvenience or injustice4      
,therefore1 when any one makes a grant1 
or  relinquishes his right1 though he   
express himself in the ,,most ,,general 
terms1 his words are usually            
,,restricted to that meaning1 which it  
is  probable he intended4 ,and in cases 
of this kind1 the hope of retaining  a  
thing is sometimes taken for the act of 

possession4 ,in the same  manner it is  
understood that subsidies of men1       
promised by one party  only1 are to be  
maintained at the expence of the power1 
who requires  them4    ,,xiii4 ,it is a 
famous question whether the word        
,,allies includes only  those who were  
such at the time of making the treaty1  
or those who  might afterwards become   
so3 as was the case in the treaty made  
between  the ,roman people and the      
,carthaginians at the conclusion of the 
war  that had originated in a dispute   
about ,sicily1 by which treaty it was   
stipulated that both powers should      
forbear attacking the allies of  each   
other4 ,hence the ,romans inferred that 
although the convention  made with      
,asdrubal1 by which he was prohibited   
from passing the  ,iberus1 had been of  
no service to them1 as it had not been  
ratified by  the ,carthaginians1 yet if 
the ,carthaginians sanctioned the       
conduct  of ,hannibal in his attack upon
 the people of ,saguntum with whom the  

,romans1 after the making of that       
convention1 had entered into an         
alliance1 they should consider          
themselves as authorised to declare war 
against the ,carthaginians for having   
violated a solemn treaty4 ,upon  which  
,livy reasons in the following manner1  
,by the clause in favour of  allies on  
both sides1 there was sufficient        
security for the ,saguntines4  ,for     
there was no limitation of the words to 
those1 who were allies at  that time1   
nor were they such as to exclude either 
power from making  new alliances4 ,but  
if both sides were at liberty to make   
new alliances1  who could think it just 
to deprive the new allies of that       
protection  to which they would be      
entitled from treaties of amity8 ,the   
exclusion  could reasonably go no       
further than to declare that the allies 
of the  ,carthaginians should not be    
seduced to renounce their engagements1  
nor  if they did so1 be admitted into   
alliance with the ,romans4    ,the last 

passage is taken1 almost word for word1 
from the third book  of ,polybius4 ,on  
which we may observe that the word      
,,allies may strictly  mean those1 who  
were so at the time1 when the treaty was
 made1 and1  without any forced         
interpretation1 may also be extended to 
embrace  those1 who afterwards became   
such4 ,to which of these interpretations
  the preference is to be given may be  
seen from the rules above given3  and   
according to those rules1 it will be    
found1 that alliances formed  after the 
making of the treaty will not be        
comprehended in it1 because  it relates 
to the breach of a treaty1 the violation
 of which is an  odious act1 and tends  
to deprive the ,carthaginians of the    
liberty of  redressing themselves by    
force against those who were supposed to
 have  injured them2 a liberty          
sanctioned by the law of nature1 and not
 to  be abandoned on any slight         
occasion4 ,were the ,romans debarred    
then by  this rule from making any      

treaty with the ,saguntines1 and        
defending  them after they became       
allies8 ,no6 they had a right to defend 
them1  not by virtue of any treaty1 but 
upon principles of natural justice1     
which no treaty can annul4 ,the         
,saguntines therefore with respect to   
both powers were in the same situation1 
as if no engagement had been  made in   
favour of allies4 ,in this case1 it was 
no breach of treaty for  the            
,carthaginians1 upon just grounds1 to   
commence hostilities against  the       
,saguntines1 nor for the ,romans to     
defend them4 ,upon the same  principle1 
in the time of ,pyrrhus1 it had been    
stipulated1 by treaty1  between the     
,carthaginians and ,romans1 that if     
either of them afterwards  entered into 
any engagement with ,pyrrhus1 the party 
so contracting  should reserve to itself
 the right of sending succours to the   
other1 if  attacked by that king4       
,though in that case the war ,,on ,,both
 ,,sides could  not be just1 yet it     

would involve no infraction of any      
treaty4 ,this is  an example of a case  
in equal treaties4    ,,xiv4 ,the case  
of an unequal treaty may be put1 where  
it is agreed  that one of the           
confederate parties shall not make war1 
without the  consent1 or by the         
injunction of the other1 which was      
stipulated in  the treaty between the   
,romans and ,carthaginians1 after the   
conclusion  of the second ,punic war4   
,when the term ,,war is applied to war  
of every  description1 particularly to  
offensive rather than defensive war2 in 
a  dubious case1 it must be limited to  
its proper signification1 lest the      
treaty should operate as too great a    
restraint upon the liberty of that      
power1 which has engaged in the unequal 
treaty4    ,,xv4 ,of the same kind is   
the promise given by the ,romans1 that  
,carthage  should be free1 which could  
never mean the enjoyment of complete    
independence1 by a people1 who had long 
before lost the right of making  war1   

and many of their other privileges4 ,yet
 it left them some degree  of liberty1  
so much at least1 that they should not  
be obliged to remove  the seat of their 
government at the command of any foreign
 power1 and  gave them a pledge that    
their city should not be disturbed4 ,it 
was  in vain then for the ,romans to    
urge that it was only the city which    
was intended4 ,whereas those acquainted 
with the use of metaphorical  language  
know that by the city is frequently     
meant the inhabitants1 and  government  
with its privileges1 and not the mere   
walls and houses4 ,for  the term1       
,,being ,,left ,,free1 implies that the 
people should enjoy their  own laws4    
,,xvi4 ,the nature of personal and real 
treaties is a frequent subject of       
inquiry1 which may properly be examined 
in this place4 ,indeed in all           
transactions with a free people1 the    
engagements entered into with them  are 
of a real nature2 because the subject of
 them is a permanent thing4  ,so        

permanent1 that1 although a republican  
be changed into a regal  government1 a  
treaty will remain in force3 for the    
political body  continues the same1     
although the head be changed1 and the   
sovereign  power1 which before was      
diffused among many members1 is now     
centered in  one4 ,yet this rule will   
admit of an exception1 where it is      
evident that  the specific form of      
government made an essential part of the
 treaty1  as when two states make a     
federal union for the mutual            
preservation  of their political        
systems4 ,but if a treaty be made with a
 ,,king ,,or  ,,sovereign ,,prince1 it  
does not consequently follow that it is 
to be  considered only as a ,,personal  
and not a ,,real treaty4 ,for the name  
of a  person may be inserted in a       
treaty1 not merely to give it the       
character  of a personal treaty1 but to 
point out the contracting parties4 ,and 
this will be still more evident1 if1 as 
is usual in most treaties1 a  clause is 

annexed declaring it to be perpetual1 or
 made for the good of  the kingdom1 or  
with the king himself1 and his          
successors1 and it will  also be        
considered as a real treaty1 even if it 
is stated to be passed  for a definite  
time4 ,the treaty between the ,romans   
and ,philip1 ,king of  the ,macedonians1
 seems to have been of this description1
 which1 upon  the refusal of his son to 
continue it1 gave rise to a war4        
,other forms too besides those already  
named1 and the subject itself1  will    
frequently supply no improbable grounds 
of conjecture4 ,but if the  conjectures 
are equal on both sides1 it will remain 
that favourable  treaties are supposed  
to be real or permanent1 and odious ones
 only  personal4 ,all treaties of peace 
or commerce are favourable4 ,yet all    
treaties of war are not odious1         
especially those of the defensive  kind1
 such a character belonging only to     
offensive wars1 from the  contemplation 
of the calamities which they inflict4   

,it is presumed too1  that in the       
formation of treaties1 the character of 
each party is taken  into the account1  
and that both are persuaded that neither
 of them will  commence hostilities1 but
 from just and important causes4        
,what is usually said of societies      
terminating with the death of the       
parties1 has no connection with this    
subject1 but relates to private         
societies1 the cognizance of which      
belongs to the civil law4 ,whether  it  
was right or wrong therefore in the     
people of ,fidenae1 the ,latins1        
,tuscans and ,sabines1 upon the death of
 ,romulus1 ,tullus1 ,ancus1 ,priscus1   
,servius1 to abandon the respective     
treaties made with those kings1 it  is  
impossible for us now to decide1 those  
treaties being no longer  extant4 ,on   
the same point1 ,justin maintains a     
discussion1 whether  those states1 which
 had been tributary to the ,medes1 were 
upon a  change of government1 released  
from their obligations4 ,for the thing  

to be considered is1 whether the        
convention with the ,medes had been  a  
voluntary act of their own4 ,indeed the 
argument of ,bodinus can by  no means be
 admitted1 which is1 that treaties made 
with kings extend  not to their         
successors2 ,for the obligation of an   
oath is limited  to the person of him1  
who takes it4 ,it is true that the oath 
itself  can bind only the person who    
takes it2 yet the engagements1 which it 
confirms1 will be binding upon his      
heirs4 ,nor is it to be taken for  an   
established maxim1 that oaths are the   
only foundation1 on which  treaties     
rest4 ,the engagement itself is         
sufficiently binding1 the oaths  being  
only added to give it the greater       
sanctity4 ,in the ,consulship  of       
,publius ,valerius1 the ,roman people   
had taken an oath to muster at  the     
command of the ,consul4 ,upon his death1
 he was succeeded by ,lucius  ,quintius 
,cincinnatus4 ,some of the tribunes     
began to quibble1 pretending  that the  

people were released from their         
obligation4 ,upon which ,livy1  in his  
third book1 remarks1 that at that time  
they had not degenerated  into the      
disregard of religious obligations1     
which marked his age3 nor  did every one
 allow himself a latitude in explaining 
oaths1 and laws1  but thought that he   
was bound to conform to their literal   
meaning4    ,,xvii4 ,a treaty made with 
a king continues in force1 even though  
the same king or his successor should be
 banished from the kingdom  by          
rebellious subjects4 ,for the rights of 
a king1 among which his  alliances may  
be reckoned1 remain unimpaired1 during  
the temporary loss  of his throne4 ,a   
case to which the expression of ,lucan  
may be applied1  that order never loses 
its rights under any change of          
circumstances4    ,,xviii4 ,on the other
 hand1 any war1 if it be with the       
consent of the  lawful sovereign1 made  
upon the invader of his kingdom1 or upon
 the  usurper of a free people's rights 

before his usurpation has received      
public sanction1 will be deemed no      
infraction of any former treaty  with   
the established authorities of that     
kingdom or country4 ,for acts  of       
usurpation convey not immediately any   
right beyond that of bare  possession4  
,and this is what was said by ,titus    
,quintius to ,nabis1 ,we  made no treaty
 of alliance and amity with you1 but    
with the just and  lawful king of the   
,lacedaemonians4 ,for in treaties the   
characters of  ,,king1 ,,successor1 and 
the ,,like1 carry with them an idea of a
 peculiar  and lawful right1 which must 
always render the cause of ,,usurpers   
odious4    ,,xix4 ,it was a question    
formerly discussed by ,chrysippus1      
whether a  prize promised to him1 who   
first reached the goal1 could be given  
to  two1 who reached it at the same     
time1 or to neither4 ,but as rewards of 
merit are things of a favourable nature1
 it is the juster opinion that  they    
should divide the prize4 ,although      

,scipio1 ,caesar and ,julian acted  more
 liberally1 in giving the entire prizes 
to each of those who had  ascended the  
walls together4    ,what has been       
already said upon the literal or        
figurative application  of the words1 in
 interpreting treaties1 will be         
sufficient4    ,,xx4 ,there is also     
another kind of interpretation1 arising 
from  conjectures1 which apply exactly  
to the signification of the words       
containing a promise or engagement2 and 
that is of a twofold  description1      
either extending or limiting the        
meaning4 ,but it is more  difficult to  
extend than to limit the acceptation of 
expressions4 ,for  as in all matters the
 want of one essential requisite is     
sufficient  to defeat their effect2 so  
in engagements1 those conjectures1 which
  extend the obligation are not readily 
to be admitted4 ,and it is much  more   
difficult here than in the case above   
mentioned2 where words  allow a more    
extensive but less familiar acceptation4

 ,for here it is  seeking a conjecture  
to extend the words of a promise3 the   
conjecture  therefore1 which is to      
create an obligation1 ought to be very  
certain4  ,nor is it sufficient that    
there is some resemblance in the        
motives2  for the motive produced to    
confirm an obligation must be exactly   
the  same as that of the case under     
consideration4 ,neither is it always    
proper to allege a motive for extending 
an obligation2 because1 as it  has been 
already said1 motives1 in actuating us  
to form engagements1  may sometimes be  
swayed by the will which often acts     
independently of  any just motive4 ,to  
authorise therefore such an extension1  
it must be  evident that the motive1    
produced as an example and authority1   
was  the sole and effectual cause1 which
 influenced the promiser1 and that  he  
considered it in the same extensive     
view2 for otherwise it would  have been 
unjust and prejudicial4 ,the ancients in
 their treatises  on rhetoric follow the

 same rule1 when1 in speaking of the    
,,letter  and ,,design1 they give us one
 invariable form of expressing the same 
sentiment1 but in their syllogisms or   
arts of reasoning they point out  a way 
of interpreting what is not written1 by 
what is written4 ,in the  same manner   
too legal writers lay down rules for    
avoiding frauds4 ,now  if at a time1    
when there was no other mode of         
fortifying towns1 than by  surrounding  
them with walls1 it were stipulated that
 a certain place  should not be so      
surrounded1 it is evident that to employ
 any other  means of fortification would
 be a breach of that treaty4    ,as in  
the above case the interpretation must  
be extended to guard  against every     
possible evasion1 so in the following   
example1 the  prohibition to assemble an
 armed force to assail us includes all  
kinds of violence and force1 by which   
our lives and security may be           
endangered4#dh    ,,xxi4 ,hence may be  
solved the question to be found in      

,gellius1  respecting a commission1     
whether it can be fulfilled by doing1   
not the  immediate act required1 but    
some thing equivalent to it1 or in a    
manner  more beneficial than in the form
 prescribed4 ,for this deviation from   
the written rule may be proper and      
lawful1 where the prescribed form is    
not essential towards attaining the     
object1 or where1 by departing from  it1
 that object can be better accomplished1
 according to the answer  given by      
,scaevola1 that the person required to  
be bail and security for  another1 may  
give an order to a third person to pay  
that money to the  creditor4 ,but where 
such a latitude of interpretation is not
 evidently  admissible1 we must adhere  
to what ,gellius has said in the same   
place1  that it would be a dissolution  
of all trusts1 if the party acting in   
commission were1 in all cases1 left to  
his own discretion1 rather than  bound  
by his written instructions4    ,,xxii4 
,an interpretation1 restricted more     

closely than the literal  signification 
of the words containing a promise       
absolutely requires1  may arise either  
from some original defect in the        
intention of  the promiser1 or from some
 subsequent emergency repugnant to such 
intention4 ,thus if it were evident that
 an absurdity would follow the          
fulfilment of a promise1 this would be  
sufficient to prove an original  defect 
in the intention1 because no man can be 
supposed to have  deliberately intended 
doing an absurd act4 ,or if the sole and
 effectual  reason1 by which the promise
 was influenced1 should have ceased1 the
  obligation also would be void1 the    
sole ground on which it rested being  no
 longer in existence4    ,,xxiii4 ,in   
the next place1 where any sufficient    
reason can evidently be  assigned for a 
promise or engagement1 it is not the    
substance of the  promise itself1 which 
is to be considered1 so much as the     
reason for  which that promise was      
given4    ,,xxiv4 ,thirdly1 the         

contending parties must always be       
supposed to have  in contemplation the  
subject1 and nothing but the subject1   
however  extensive a signification the  
words may seem to bear4 ,this method of 
interpretation also is handled by the   
ancient rhetorical writers1 in  speaking
 of expression and design1 and they     
place it under the head of  ,,variations
 ,,in ,,opinion4    ,,xxv4 ,in speaking 
of motives and reasons1 it is proper to 
observe1 that  they some times          
comprehend things1 considered not       
according to their  actual existence1   
but according to their moral            
consequences3 in which  case it is by no
 means right to limit the words of a    
treaty to their  literal meaning1 but   
the utmost extent of interpretation is  
allowable1  in order to maintain the    
spirit as well as the letter of such    
treaties4  ,thus if it be stipulated    
that no troops or ships shall be brought
 to a  certain place1 or within a       
certain distance1 the prohibition       

excludes  ,,all ships or troops from    
being brought thither1 even under the   
fairest  and most harmless pretences4   
,for the purport of the treaty is to    
guard  not only against actual mischief 
but even against remote danger4    ,it  
is a point often disputed1 whether the  
continuance of things in  their present 
state is a tacit condition1 on which the
 fulfilment of  all promises is founded4
 ,a position that can by no means be    
maintained1  unless it appears that such
 continuance was the sole motive upon   
which the treaties were made4 ,as in    
many parts of history1 we read of       
ambassadors having relinquished their   
missions1 and returned home1  upon      
finding the state of things so changed  
that the object of their  embassies was 
at an end4    ,,xxvi4 ,when an emergency
 arises repugnant to the general        
intention of an  act1 it is explained by
 the ancient masters of rhetoric under  
the head  of expression and design4 ,now
 this variation between the emergency   

and  the intention is of a twofold      
nature4 ,for the will and its intention 
are to be collected either from natural 
reason or from some outward  sign4 ,in  
judging of the will by natural reason1  
,aristotle1 who has  treated the subject
 with great accuracy1 makes the ,,mind  
the ,,seat ,,of  ,,judgment1 and the    
,,will the ,,seat ,,of ,,equity1 which  
he nobly defines to  be the correction  
of that1 wherein the law1 by reason of  
its universal  nature is defective4#di  
,and upon this principle all wills and  
treaties ought to be interpreted4  ,for 
as all cases could neither be foreseen  
nor expressed by the  lawgiver1 it is   
necessary to leave a power of excepting 
the cases1  which he himself would have 
excepted if he were present4 ,yet this  
is  not to be done upon light grounds2  
for that would be exercising a  controul
 over the acts of another2 but is only  
to be established upon  the clearest    
evidence and strongest proofs4 ,the     
clearest proof we  can have of a want of

 equity1 is where following the literal 
meaning  of the words would be unlawful1
 that is1 repugnant to natural or       
divine precepts4 ,for such things1 as   
are incapable of obligation1 are        
necessarily to be excepted4 ,quintilian 
the elder1 says1 some things  although  
comprehended within the meaning of no   
law form a natural  exception4 ,thus any
 one1 who has promised to return a      
sword1 that  has been given up to him1  
ought not to return it into the hands of
 a  madman1 as danger might result from 
it to himself or to other innocent      
persons4 ,likewise a thing1 which has   
been deposited with any one1 ought  not 
to be returned to the hands of the      
person1 who gave the pledge1 if  the    
real owner demands it4 ,i prove this    
says ,triphonius to be justice1  which  
assigns to every one his own without    
disturbing the still juster  claims of  
another4 ,for the reason1 it has been   
already observed1 is  founded on the    
institution of property1 which makes it 

unjust not to  return a thing when the  
real owner is known4    ,,xxvii4 ,the   
need of equity too will appear in cases1
 where following the  literal meaning of
 the words will not be absolutely       
unlawful1 yet1 upon  a fair estimation1 
will be found too hard and intolerable4 
,it might  impose a hardship            
inconsistent with the general condition 
of human  nature1 or1 upon comparing the
 person and matter under consideration  
with each other1 it might be found at   
variance with the general intent  of all
 law1 which is to prevent evil and to   
redress injury4 ,thus1 if  a person has 
lent a sum of money1 or any other thing1
 for a ,,certain  time1 he may justly   
require the repayment or restoration of 
it ,,within  that time1 if he has great 
need of it himself3 for acts of kindness
 are  of such a nature1 that no one can 
be supposed intentionally to bind       
himself thereby to manifest             
inconvenience or prejudice4 ,in the same
  manner a sovereign1 who has promised  

assistance to an ally1 will1 ,,in       
,,equity1 be excused from fulfilling his
 engagement1 if he wants all his        
strength at home to ward off danger or  
hostilities4 ,the grant also of         
immunities or privileges in ,,ordinary  
cases1 cannot be pleaded as an          
exemption or exception from the         
services1 which the state in            
,,particular  emergencies requires4     
,from the above instances it appears    
that ,cicero has too loosely worded  his
 proposition1 that such promises1 as are
 prejudicial to the  person1 to whom    
they are given1 are not to be kept1 nor1
 if they are  more prejudicial to the   
party giving1 than beneficial to the    
person  receiving them4 ,for it should  
not be left to the promiser to judge1   
whether the fulfilment of his engagement
 will be serviceable to the  party      
receiving it1 except in the case of the 
madman cited above3  nor is any         
,,trivial or ,,imaginary prejudice that 
might result from it1  sufficient to    

release the obligation4 ,but it ought to
 be such1 as1  according to the nature  
of the act1 would necessarily be        
supposed to  form an exception4 ,thus   
any one1 having promised his assistance 
to a  neighbour at a certain period1    
would not be bound to his engagement1   
if he were detained at home by the      
sickness of a father or a child4  ,a    
case1 which ,cicero1 in his first book  
of offices1 has put in the  following   
terms1 ,if any one has undertaken to    
manage a cause1 and1  in the mean time1 
his son is taken ill1 it will be no     
breach of duty  in him not to perform   
what he has promised4 ,there is a       
passage in  the fourth book of ,seneca1 
,,on ,,benefits1 to the same effect4 ,i 
am  liable1 says he1 to be charged with 
levity1 and a breach of faith1  if1     
things continuing as they were1 when ,i 
made a promise1 ,i do not  perform my   
engagement4 ,but if any change has taken
 place1 it leaves  me at liberty to     
reconsider the matter1 and releases the 

obligation4  ,i promised my support in  
court1 and it afterwards appeared that  
the  cause would be prejudicial to my   
own father4 ,i promised to take a       
journey1 but afterwards heard that the  
road was infested with robbers4  ,i     
promised my presence on some particular 
occasion1 but was prevented  from       
attending by the sickness of a son4 ,in 
all these cases1 to bind me  to my      
engagement1 the circumstances ought to  
remain exactly the same as  they were   
when ,i made the promise4    ,,xxviii4  
,it has been said that there are other  
indications of intention1  which require
 an equitable exception in favour of the
 present case4 ,and  among such proofs  
there can be nothing stronger than the  
same words  used in another place1 not  
where they directly oppose the present  
meaning1 for that would amount to a     
contradiction1 but where they  clash    
with it1 owing to some unexpected       
emergency1 which the ,greek             
,rhetoricians call a circumstantial     

disagreement4#ej    ,,xxix4 ,when there 
is any accidental collision between one 
part of  a written document and another1
 ,cicero1 in the second book of his     
treatise ,,on ,,invention1 has given    
rules for deciding which of them ought  
to have the preference4 ,though his     
arrangement is not very accurate1  yet  
it is by no means to be neglected4 ,to  
supply therefore this defect  of        
accuracy1 the rules may be digested in  
the following order4    ,in the first   
place1 a ,,permission ought to give way 
to a ,,command3  because a permission   
appears to be granted only in case there
 is  no weightier objection than its    
being an exception to a positive        
precept1 nor any preponderance in favour
 of an opposite determination4          
,consequently1 as the writer to         
,herennius says1 what is positively     
prescribed is more powerful than a bare 
permission4    ,in the next place what  
is required to be done at a ,,fixed time
 should  have the preference to what may

 be done at ,,any time4 ,from whence it 
follows that the ,,prohibitions of a    
treaty are generally of more weight     
than its ,,injunctions3 because the     
prohibitory power operates at ,,all     
times4 ,but it is not so with           
injunctions1 unless an express time for 
their fulfilment is named1 or they      
contain a tacit prohibition4    ,among  
those treaties1 which1 in the above     
named respects1 are equal1  the         
preference is given to such as are more 
particular1 and approach  nearer to the 
point in question4 ,for where           
particulars are stated1  the case is    
clearer1 and requires fewer exceptions  
than general rules  do4#ea    ,those    
prohibitions which have a penalty       
annexed to them1 are of greater  weight 
than those1 which have not2 and those   
with a greater penalty are  enforced in 
preference to those that have a less4   
,those engagements  also which are      
founded upon causes of less magnitude   
and importance  ought to give way to    

those which have more laudable and      
useful objects  in view4    ,lastly it  
is to be observed that a subsequent law 
or treaty always  repeals a former4     
,from what has been said an inference   
may be drawn in favour of sworn         
treaties or agreements that they ought  
to be taken in the most usual           
acceptation of the words1 rejecting all 
implied limitations and  exceptions1 and
 such as are not immediately necessary  
to the subject4  ,consequently in a     
case1 where a sworn treaty or engagement
 may happen  to clash with another not  
enforced by the obligation of an oath1  
the  preference ought to be given to the
 former4    ,,xxx4 ,it is often asked   
whether in doubtful points1 a contract  
should be  deemed perfect1 before the   
writings are made and delivered4 ,we    
find  in ,appian's history of the       
,mithridatic war1 that it was upon this 
very  ground ,murena objected to the    
convention between ,sylla and           
,mithridates4  ,however it appears      

plain1 unless it has been settled to the
 contrary1  that writing ought to be    
considered admissible as evidence of a  
contract1 though not as part of the     
substance1 otherwise it is usually      
expressed1 as in the truce with ,nabis1 
which was to be ratified from  the day  
the terms were ,,written and ,,delivered
 to him4    ,,xxxi4 ,we can by no means 
admit the rule laid down by some        
writers1  who maintain1 that all        
engagements of kings1 and states1 ought 
to be  explained1 as far as it is       
possible1 upon the principles of the    
,roman  law3 unless indeed it can be    
made to appear that among some states1  
in  their intercourse with each other1  
the ,,civil ,,law is received as the    
,,law  ,,of ,,nations2 a presumption    
which ought not to be hastily granted4  
,,xxxii4 ,as to the doubt1 which        
,plutarch advances in his ,symposiacs1  
whether the words of the party offering1
 or those of the one accepting  a       
condition ought to be most attended to1 

it appears that where the  party        
accepting the terms is the promiser1 the
 nature and substance  of the           
transaction will depend upon his words1 
if they are absolute  and unqualified4  
,for if the offer is regarded as a      
positive engagement  to do certain acts1
 then the full extent of it will be seen
 by the  necessary repetition of the    
same words in the promise4 ,but before a
  condition is accepted1 it is evident1 
as was seen in the chapter on  promises1
 that the promiser is not bound to its  
fulfilment2 for no  right has been      
conferred by the one party1 or acquired 
by the other4  ,therefore the offer of a
 condition of this kind does not amount 
to a  perfect promise4                  
,,chapter ,,xvii4    ,,on ,,damages     
,,occasioned ,,by ,,injury ,,and ,,the  
,,obligation ,,to ,,repair ,,them4      
,on ,damages occasioned by injury1 and  
the obligation to repair                
them--,every misdemeanor obliges the    
aggressor to repair the      loss--,by  

loss is meant any thing repugnant to    
right strictly so                       
called--,distinction between fitness and
 strict right--,loss or      diminution 
of possession includes every injury done
 to the produce      as well as the     
property itself--,loss estimated from   
the time that      gain                 
ceases--,injuries done by               
principals--,by accessories--,injuries  
done by the neglect of principal or of  
secondary agents--,what      persons are
 implicated in those charges1 and in    
what degrees--,the      parties engaged 
answerable for all consequences--,the   
case where      homicide or any other   
act of violence ensues--,case of        
robbery--,or      theft--,promises      
obtained through fraud or unjust        
fear--,in what      cases the           
consequences are imputable to the       
suffering party--,how      far the law  
of nations authorises states to take    
advantage of an      enemy's fear--,how 
far sovereigns are answerable for any   

acts of      violence committed by their
 subjects--,the case where subjects in  
violation of their sovereign's          
permission and orders commit acts       
of piracy upon allied or neutral        
states--,no one answerable by the       
law of nature for the mischief done by  
his cattle1 his slaves1      or his     
ship--,damages allowed for injuries done
 to reputation or      honour--,what    
kind of reparation allowed4      ,i4 ,it
 has been said above that the rights due
 to us arise from three  sources1 which 
are contract1 injury and law4 ,it is    
unnecessary here  to dwell upon the     
nature of contracts which has been      
already so fully  discussed4 ,the next  
point therefore to which we proceed is  
an inquiry  into the rights resulting to
 us from injuries received4 ,here the   
name  of crime or misdemeanor is applied
 to every act of commission or  neglect 
repugnant to the duties required of all 
men1 either from their  common nature or
 particular calling4 ,for such offences 

naturally create  an obligation to      
repair the loss or injury that has been 
sustained4    ,,ii4 ,by loss is meant a 
diminution of what any one possesses1   
whether  it be a right derived to him   
purely from the law of nature1 or from  
the addition of human authority1 that is
 from the law of property1  contract1 or
 civil law4 ,god has given life to man1 
not to destroy1  but to preserve it2    
assigning to him for this purpose a     
right to the  free enjoyment of personal
 liberty1 reputation1 and the controul  
over  his own actions4 ,the manner1 in  
which property and contracts convey  to 
any one a right to things1 as well as to
 the service of another1  has been shewn
 in the preceding part of this treatise4
 ,in the same  manner from the law every
 man derives his peculiar right2 because
 the  law has the same1 if not greater  
power over persons and things than      
individuals themselves have4 ,thus by   
the appointment of law1 a ward  has a   
right to demand the strictest diligence 

of a guardian1 the state  of a          
magistrate1 and not only the state1 but 
every subject has a right  to require   
it2 where the law expressly declares or 
evidently implies  that certain acts    
shall be performed4 ,but the bare       
circumstance of an  action being fit or 
proper gives not the right of           
,,political justice to  demand its      
performance1 nor does the neglect of it 
entitle the party  suffering to any     
legal redress4 ,because it does not     
follow that a thing  must belong to a   
person because it is fit or beneficial  
for him4 ,thus1  as ,aristotle says1    
there is no actual injustice1 though it 
may be  illiberal to refuse assisting   
another with money4 ,to the same purpose
  ,cicero1 in his speech for ,cneius    
,plancus1 says1 that giving their votes 
to whom they please1 or withholding them
 if they think proper1 is the  true     
characteristic of a free people4 ,he    
afterwards1 indeed1 corrects  his       
assertion by adding1 that they may      

happen to do what they like1  rather    
than what they ought to do1 taking the  
word ,,ought to signify  propriety4     
,,iii4 ,a precaution is necessary here1 
in order to avoid confounding  things of
 a different kind4    ,now those who are
 entrusted with the power of appointing 
magistrates1  are bound1 from motives of
 public good1 to chuse the properest    
persons1  and this is what the state has
 a ,,right to require of them4 ,they are
  bound therefore to repair any loss    
which the state may sustain by the      
choice of improper persons4 ,so any     
subject who is not disqualified1  though
 he has no peculiar right to an office1 
has an equal right with  others to      
endeavour to obtain it4 ,in the exercise
 of which right1  if1 he is obstructed  
by violence or fraud1 he may recover    
damages1  not to the full value of the  
office which he sought1 but according   
to the probable loss which he may       
reasonably be supposed to have          
suffered4 ,similar which is the right of

 a legatee1 when a testator has  been   
prevented by fraud or violence from     
making a bequest4 ,for the  capability  
of receiving a legacy is a kind of      
right1 which to obstruct  a testator    
from conferring1 is undoubtedly an      
injury4    ,,iv4 ,the loss or diminution
 of any one's possessions is not        
confined  to injuries done to the       
,,substance alone of the property1 but  
includes  every thing affecting the     
produce of it1 whether it has been      
gathered  or not4 ,if the owner himself 
had reaped it1 the necessary expence of 
reaping1 or of improving the property to
 raise a produce1 must also be  taken   
into the account of his loss1 and form  
part of the damages4 ,for  it is an     
established maxim that no one ought to  
derive benefit from the  loss of        
another4    ,v4 ,damages are to be      
computed too1 not according to any      
,,actual gain1  but according to the    
,,reasonable expectation of it4 ,which  
in the case of  a growing crop may be   

judged of by the general abundance or   
scarcity of  that particular season4    
,,vi4 ,but besides the person           
immediately doing an injury1 others may 
be  bound also to repair the losses of  
the suffering party4 ,for as a person   
may be guilty of offences by negligence 
as well as by the commission  of certain
 acts1 so they may be done also by      
accessories1 as well as  principals4    
,now a principal in any crime or offence
 is one1 that urges  to the commission  
of it1 that gives all possible consent1 
that aids1  abets1 or in any shape is a 
partner in the perpetration of it4      
,,vii4 ,an accessory is one who gives   
his counsel1 approbation1 and  assent4  
,for where is the difference1 says      
,cicero1 in his second  ,philippic1     
between advising an act1 and approving  
of it8    ,,viii4 and ,,ix4 ,the        
obligation to repair the losses suffered
 by  negligence may be considered in a  
two-fold light4 ,firstly1 when any      
person1 whose peculiar office it is1    

neglects either to forbid the           
commission of an injury1 or to assist   
the injured party4 ,and secondly1  when 
the person1 who ought to do it1 either  
does not dissuade from the  commission  
of an offence1 or passes over in        
silence1 what he is bound  to make      
known4 ,in these cases1 when it is said 
that a person ,,ought to  do1 or to     
forbear doing certain actions1 it is    
meant that he is bound  by that right1  
which strict justice requires1 whether  
that duty arises  from law1 or from the 
capacity1 which the person bears4 ,for  
though it  may be wrong to omit any duty
 enjoined by the law of charity1 there  
can be no redress for such omission1 but
 every ,,legal ,,remedy must be  founded
 on some ,,peculiar ,,right4    ,x4 ,it 
is to be observed also that all the     
parties above-mentioned1 if  they have  
been the real occasion of loss to any   
one1 or have abetted  the person doing  
him the injury1 are so far implicated in
 the guilt1  as to be liable to full    

damages1 or1 at least1 proportionably to
 the  part they have taken4 ,for it may 
and often does happen that a crime      
would have been committed by an         
offender1 even without the aid of  other
 principals or accessories4 ,in which   
case he alone is answerable4  ,yet      
neither principals nor accessories will 
be allowed to plead as an  excuse1 that 
if they had not aided or abetted1 others
 would have been  found to assist and   
encourage the perpetrator in the        
commission of the  act4 ,especially1 if 
it appears that without such assistance 
from them  the crime would never have   
been committed4 ,for those other        
imaginary  abettors would themselves    
have been answerable1 if they had given 
their  advice or aid4    ,,xi4 ,in the  
scale of implication the first degree   
applies to those1 who  by their         
authority1 or other means have compelled
 or urged any one  to the commission of 
an offence4 ,on failure of these the    
perpetrator  himself has the greatest   

share of guilt1 and next to him1 others 
who  have been concerned4 ,in short1 all
 individuals1 whose hands have been     
engaged in the perpetration1 are guilty1
 though they have not been the  sole    
authors of the act4    ,,xii4 ,now he   
who is answerable for an act1 is        
answerable for all  the injurious       
consequences attending it4 ,seneca in   
one of his  controversies1 treating upon
 this point1 puts the case of a         
plane-tree  set on fire1 by which a     
house was burnt1 and he subjoins the    
following  remark1 although the mischief
 went further than was intended1 yet    
the person doing it was answerable for  
the ,,whole1 as much1 as if  he had done
 it by design4 ,for any one that puts   
his defence upon  the plea of           
,,unintentional ,,injury1 ought to have 
abstained from all  mischief whatsoever4
 ,when ,ariarathes1 king of ,cappadocia 
had wantonly  obstructed the channel of 
the river ,melas1 which discharges      
itself  into the ,euphrates1 the swell  

of waters bursting the mounds1 the      
,euphrates rose to such a height1 as to 
occasion excessive damage to the        
,cappadocians1 the ,galatians1 and the  
,phrygians4 ,upon which the decision  of
 the matter being left to the ,romans1  
they imposed upon him a fine of  three  
hundred talents4    ,,xiii4 ,,xiv4 ,,xv4
 and ,,xvi4 ,but to proceed with other  
instances of injury1  which render the  
parties committing them liable to repair
 the losses  occasioned thereby4 ,the   
case of excusable homicide may be       
alleged as  one1 wherein the person1 who
 has committed it1 is bound to make     
every  reasonable compensation to the   
family1 dependents1 and connections  of 
the deceased party1 in proportion to the
 loss1 which they have  sustained from  
his death4 ,as ,michael the ,ephesian in
 the fifth book  of ,aristotle's ,ethics
 has observed1 that the compensation    
made to the  parents1 the wife or       
children of the deceased is nearly the  
same as if  it could be made to himself4

 ,the writer is here speaking of        
excusable  homicide1 that is1 when the  
person by whom it is committed1 does it 
not  in the immediate discharge of some 
legal duty4 ,wherefore if any one1 in   
defending himself1 has killed another   
from whom he might have escaped1  though
 he may have violated the law of        
charity1 yet he has not incurred  the   
penalty of a capital offence4    ,upon  
the same principle the person1 who has  
maimed or mutilated  another1 will be   
bound to make him a compensation1       
proportionably to  the means of         
subsistence which he is deprived of by  
such a calamity4    ,a thief or a robber
 is bound to restore what has been      
taken1 and to  return it with all the   
improvements it may have acquired1 or to
 make  reparation to the owner1 in      
proportion to the gain1 which the       
privation  has prevented him from       
making1 or to the actual value of the   
thing  itself4 ,if the thing has been   
irretrievably consumed1 the estimation  

of  damages must be made1 according to a
 medium between the highest and the     
lowest value4    ,to this class of      
offences and due reparation may be      
referred all frauds  upon the public    
revenue1 all unjust decisions1 or all   
false evidence1  by which states or     
individuals are injured4    ,,xvii4     
,contracts1 or promises obtained by     
fraud1 violence or undue fear  entitle  
the injured party to full restitution4  
,for perfect freedom from  fraud or     
compulsion1 in all our dealings1 is a   
,,right which we derive  from natural   
law and liberty4    ,with the same class
 of offenders we may rank all men in    
office1 who are  unwilling to discharge 
their duty without a bribe4    ,,xviii4 
,when a person has ,,himself been the   
occasion of the fraud or  violence1 the 
consequences are imputable to his own   
conduct4 ,for  where a voluntary act    
gives rise to ,,involuntary             
consequences1 those  consequences1      
considered in a moral light1 are to be  

deemed the fruits  growing out of the   
exercise of a free will4    ,,xix4 ,but 
to connect the preceding cases and      
arguments with public and  national     
concerns1 it is necessary to observe1   
that it is a maxim  introduced and      
established by the consent of all       
nations that the wars  which are        
declared and conducted by the authority 
of the sovereign  power on both sides   
are alone entitled to the denomination  
of just  wars3 ,and the enemy has no    
right to demand restitution for what the
  prosecution of such wars has reduced  
him to abandon through fear4 ,it  is    
upon this principle we admit the        
distinction which ,cicero has made      
between an enemy1 towards whom the      
consent and law of nations oblige us  to
 observe many common rights1 and between
 robbers and pirates4 ,for any  thing   
given up to pirates or robbers1 through 
fear1 is no lawful prize3  but it may be
 recovered1 unless a solemn oath of     
renunciation has been  taken4 ,this is  

not the case with the captures made in  
just war4    ,the justification which   
,polybius makes for the ,carthaginians1 
in the  second ,punic war1 carries with 
it an appearance of equity1 though it   
is not a question immediately founded   
upon the law of nations4 ,they  alleged 
as a reason for their making that war1  
that1 when they were  engaged in        
quelling a mutiny of their own          
mercenaries1 the ,romans had  declared  
war1 seized upon ,sardinia1 and levied  
contributions of money4    ,,xx4        
,sovereign ,princes and ,states are     
answerable for their neglect1 if  they  
use not all the proper means within     
their power for suppressing  piracy and 
robbery4 ,and on this account the       
,scyrians were formerly  condemned by   
the ,amphictyonic council4    ,when some
 of the states of the united ,provinces 
had1 on a particular  occasion1 granted 
commissions to many privateers1 and     
those adventurers  plundered friends and
 enemies alike1 and became general      

pirates1 it  was a subject of great     
discussion1 whether those states were   
justified  in having made use of the    
services of desperate and abandoned men1
  without exacting sufficient security  
for their good conduct4 ,at that  time1 
it was maintained that they were bound  
to nothing more1 than to  punish or     
deliver up the offenders1 if they could 
be found1 and to see  justice done by a 
forfeiture of their property4 ,for they 
themselves  had neither authorised those
 ,,unjust acts of plunder1 nor shared in
  the fruits of them4 ,they had even    
strictly prohibited the privateers  from
 molesting the subjects of friendly     
powers4 ,as to their taking  securities1
 there was no obligation to do that3 for
 they had a right  to grant a ,,general 
commission to all their subjects to     
seize upon  the enemy's property3 a     
thing1 which had frequently been done4  
,nor  could that particular commission  
be considered as an act of injustice    
against either allies or neutrals2 since

 even without such permission           
individuals might have fitted and sent  
out armed vessels4 ,the states  could   
not foresee1 nor consequently provide   
against the misconduct of  those        
adventurers1 who had exceeded their     
commission2 and if nations  were to     
decline using the assistance of wicked  
men1 no army could ever  be collected4  
,and it has been confirmed by the       
authority both of ,france  and ,england1
 that a sovereign cannot answer for     
every injury done to  the subjects of a 
friendly power by his naval or military 
forces2  especially if it is plain that 
they acted in violation of his orders4  
,but in what cases any one is released  
from being answerable for what  is done 
by his subordinate agents1 is a point   
not so much for the law  of nations1 as 
for the municipal law1 and particularly 
the maritime  code of each country to   
decide4 ,in a case similar to that      
alluded to1  a decision of the supreme  
court of judicature was made against the

  ,pomeranians two centuries at least   
before4    ,,xxi4 ,it is the ,,civil law
 too1 which makes an owner answerable   
for the  mischief or damage done by his 
slave1 or by his cattle4 ,for in the eye
  of natural justice he is not to blame4
 ,so neither is the person1 whose  ship1
 by running foul of another1 has damaged
 it1 though by the laws  of many        
nations1 and of ours among the rest1 the
 damages are usually  divided between   
both parties1 owing to the difficulty of
 deciding1 who  was in fault4    ,,xxii4
 ,damages are allowed too for any injury
 done to our honour or  reputation1 by  
assault1 slander1 or various other ways4
 ,in which1 as  well as in theft and    
other crimes the nature of the offence  
is to be  estimated by its consequences4
 ,for the reparation in such cases      
answers  to the penalty imposed for     
crimes4 ,and that reparation is made    
some  times by acknowledging the injured
 party's innocence2 and some times by  a
 compensation in money1 which is a      

standard value of all things4           
,,chapter ,,xviii4    ,,on ,,the ,,right
 ,,of ,,embassies4      ,right of       
,embassies1 an obligation arising out of
 the law of      nations--,where it     
obtains--,whether ,embassies are always 
to be      admitted--,dismissal or      
punishment of ambassadors engaging in   
plots not to be considered as a harsh   
measure1 but an act of                  
self-defence--,a power to whom no       
ambassador has been sent1      not bound
 to respect the rights of embassy--,an  
enemy to whom      an ambassador is sent
 bound to respect his rights--,the law  
of      retaliation no plea for ill     
treatment of an ambassador--,this right 
of protection extends to an ambassador's
 suite1 if he thinks proper      to     
claim it--,to his moveable              
property--,examples of obligation       
without the right of                    
compulsion--,importance of the sacred   
character      of ambassadors4      ,i4 
,hitherto the pursuit of our inquiries  

has led us to examine those  rights to  
which we are entitled by the law of     
nature1 occasionally  touching upon     
those points where its authority is     
farther confirmed by  the voluntary law 
of nations4 ,and that voluntary law as  
it is called1  gives rise to certain    
obligations1 which now remain for our   
discussion1  and in which the rights of 
ambassadors form a leading feature4     
,almost  every page of history offers   
some remark on the inviolable rights of 
ambassadors1 and the security of their  
persons1 a security sanctioned  by every
 clause and precept of human and        
revealed law4 ,nor is it  surprising    
that the persons of those should be     
deemed inviolable1  who form the        
principal link in that chain1 by which  
sovereigns and  independent states      
maintain their intercourse with each    
other4 ,to offer  violence to them is   
not only an act of ,,injustice1 but1 as 
,philip in his  letter to the ,athenians
 says1 is acknowledged by all to be an  

act of  ,,impiety4    ,,ii4 ,but        
whatever rights the law of nations may  
confer upon ambassadors1  it is         
necessary in the first place to observe1
 that none are entitled  to them1 but   
those1 who are sent by the sovereigns of
 independent  countries to each other4  
,for the privileges of provincial1 or   
municipal  deputies sent to the states  
general of any country are regulated by 
the  particular laws of that country and
 not by the law of nations4#eb    ,thus 
we find1 in the first book of ,livy1 an 
ambassador styling himself  a public    
messenger of the ,roman ,people2 and1 in
 the sixth book of the  same historian1 
we have a declaration of the senate1    
confining the  rights of embassies to   
the intercourse between foreign powers1 
and  excluding citizens from the same   
privileges in their transactions with   
each other4 ,upon this topic1 the       
authority of ,cicero may be cited1 who1 
in order to shew the impropriety of     
sending ambassadors to ,antony1         

observes1 that they are not dealing with
 a ,hannibal or a foreign enemy1  but   
with one of their own citizens4    ,now 
,virgil has so clearly explained ,,who  
are to be reckoned ,,foreigners1  that  
we need not have recourse to lawyers1 to
 understand what is so  well expressed  
by the poet1 who says1 ,i look upon     
every country as  foreign1 which owns   
not the sway of our sceptre4 ,aen4 vii4 
#cfi4    ,a state therefore connected   
with another though by an unequal       
treaty1  if it retain its independence1 
will have a right of sending embassies4 
,the ,princes of ,germany1 who were in  
some respects subject to the  ,emperor1 
as their head1 being ,sovereign ,princes
 possessed the right of  sending        
ambassadors to foreign states4 ,but     
,kings who have been entirely  subdued  
in just war1 and stripped of their      
dominions1 have1 with all  their other  
sovereign rights1 lost that of sending  
ambassadors4 ,it was  for this reason1  
that ,paulus ,aemilius made prisoners of

 the messengers  sent to him by         
,perseus1 whom he had conquered4    ,in 
civil wars necessity sometimes gives    
birth to new rights in  violation of    
former rules4 ,when for instance1 a     
kingdom is so equally  divided between  
two parties1 that it is a matter of     
doubt which of  them constitutes the    
nation1 or in a disputed succession     
between two  claimants of the crown2 the
 kingdom may be considered as forming   
two  nations at the same time4 ,tacitus1
 considering each party in such  cases1 
as entitled to the rights of the law of 
nations1 condemns the  ,flavians for    
having1 in the rage of civil            
dissensions1 violated1 in  the persons  
of the ,vitellian ambassadors1 those    
privileges1 which  are respected even   
among ,,foreign nations4 ,pirates and   
robbers1 as  they form no civil         
community1 cannot rest any claim to     
protection  and support upon the law of 
nations4 ,tiberius1 as we are informed  
by  ,tacitus1 when ,tacfarinas sent     

ambassadors to him1 spurned at the idea 
of treating with a robber1 as with a    
lawful enemy4 ,yet sometimes a  pledge  
of public faith1 and the rights of      
embassy are allowed to men of  that     
description1 which was done by ,pompey  
to the fugitives from the  ,pyrenean    
forest4    ,,iii4 ,there are two points 
upon which the privileges granted by the
 law  of nations to ambassadors turn4   
,in the first place1 they have a right  
to be admitted into any country1 and    
secondly to be protected from all       
personal violence4 ,respecting the      
former of these points1 there is  a     
passage in the eleventh book of ,livy1  
where ,hanno1 a ,carthaginian  senator  
inveighs against ,hannibal for not      
having admitted into his camp           
ambassadors1 who came from the allies1  
and on their behalf2 as he had  thereby 
overturned the law of nations4    ,but  
this rule by no means compels nations to
 give an ,,unqualified  admission to all
 ambassadors4 ,for that is what the law 

of nations  can never intend3 it only   
prohibits the refusal of admission      
without  sufficient grounds4    ,there  
are various motives which may afford a  
sufficient plea for  such refusal4      
,there may be an objection to the power 
who offers to  treat1 to the person sent
 upon the embassy1 or perhaps to the    
object  of his mission4 ,thus at the    
suggestion of ,pericles1 ,melesippus1   
the  ,lacedaemonian ambassador1 was sent
 out of the territories of ,athens2     
because he came from an enemy1 who had  
no pacific intentions4 ,the  senate of  
,rome said1 that they could receive no  
embassy from ,carthage1  as long as the 
,carthaginian army remained in ,italy4  
,the ,achaeans  refused to admit the    
ambassadors of ,perseus1 who were       
secretly  ,,meditating war against the  
,romans4 ,upon the same grounds         
,justinian  rejected an embassy from    
,totilas1 and the same was done by the  
,goths  at ,urbino to messengers from   
,belisarius4 ,polybius relates in the   

third  book of his history1 that every  
power drove away the ambassadors of the 
,cynethensians1 as they were so infamous
 a people4    ,we have an instance of   
the second kind1 where the objection is 
made to  the ,,person sent on an        
embassy1 in the case of ,theodore1 who  
was called  the atheist1 and whom       
,lysimachus refused to receive in the   
character  of an ambassador sent from   
,ptolemy1 and the same thing has        
frequently  happened to others1 against 
whom peculiar motives of aversion have  
existed4    ,in the third place1 there  
may be sufficient grounds for refusing  
to  admit an ambassador1 if the object  
of his mission be of a suspicious  kind1
 as was the case with that of           
,rhabshakeh the ,assyrian1 whom         
,hezekiah had reason to suspect of      
coming with a design to excite his      
people to rebellion4 ,or the refusal may
 be justified1 where it is not          
consistent with the dignity or          
circumstances of one power to enter into

  any treaty1 or intercourse with       
another4 ,for this reason the ,romans   
sent a declaration to the ,aetolians1   
that they should send no embassy1  but  
with the permission of their general1   
and ,perseus was not allowed  to send   
one to ,rome1 but to ,licinius4         
,jugurtha's ambassadors too1 as         
,sallust informs us1 were ordered to    
leave ,italy within the space of  ten   
days1 unless they came with offers from 
that prince to surrender  himself1 and  
his kingdom4    ,there may often be the 
best reasons for a sovereign's refusing 
to allow  of a ,,resident minister at   
his court2 a practice1 so general in the
  present day1 but totally unknown to   
the ages of antiquity4    ,,iv4 ,as to  
the personal exemption of ambassadors   
from arrest1  constraint1 or violence of
 any kind1 it is a subject of some      
difficulty  to determine1 owing to the  
varieties of opinion entertained by the 
most celebrated writers on the question4
 ,in the consideration of this  matter1 

our attention is directed in the first  
place to the personal  privileges and   
exemptions of ambassadors themselves1   
and next to those  of their attendants1 
and their goods4 ,with respect to their 
persons1  some writers are of opinion1  
that it is ,,only from ,,unjust         
,,violence1  and ,,illegal ,,constraint1
 that the law of nations protects       
ambassadors4  ,for they imagine that    
their privileges are to be explained    
according  to the common principles of  
the law of nature4 ,others again suppose
  that ambassadors are not amenable to  
punishment for ,,all offences1 but  only
 for such as amount to a transgression  
of the law of ,,nations1 the  principles
 of which are of such general extent1 as
 to include the  law of nature3         
consequently there can be no offences   
for which an  ambassador is not         
punishable1 except for those actions    
that are made  such by the positive     
rules of ,,municipal or ,,civil ,,law4  
,others again consider these public     

representatives of states and  crowned  
heads1 as only liable to punishment for 
offences affecting  the dignity or      
governments of the sovereigns to whom   
they are sent4  ,while1 on the other    
hand1 there are some writers who        
maintain that for  any state to punish  
an ambassador for ,,any ,,crime         
,,whatever is highly  dangerous to the  
independence of foreign powers2 but that
 all offenders  of that description     
ought to be left to the laws of their   
respective  countries1 to be punished or
 not according to their deserts1 upon   
due  complaint being made to the        
sovereigns by whom they were sent4      
,some few writers1 indeed1 in laying    
down the rule to be observed  in such   
cases1 have decided that an appeal      
should be made to other  independent and
 disinterested powers1 which may be     
considered rather  as a matter of       
,,discretion1 than of ,,absolute        
,,right4 ,but the advocates  of all     
these various systems have come to no   

definite conclusion in  support of their
 favourite opinions4 ,for this is a     
right which cannot1  like the law of    
nature1 be established upon unchangeable
 rules1 but  derives all its efficacy   
from the will of nations4 ,nations if   
they  had thought proper1 certainly     
might have laid down ,,absolute rules of
  security for ambassadors1 or coupled  
them with certain exceptions4  ,the     
argument is supported on one side by the
 urgent necessity of  heinous crimes    
being punished1 and on the other1 the   
utmost latitude  of exemption is        
favoured on account of the utility of   
embassies1 the  facility of sending     
which ought to be encouraged by every   
possible  privilege1 and security4 ,to  
settle the point therefore1 we must     
consider how far nations have agreed    
among themselves upon these  principles2
 the proofs of which can only be found  
in the evidence of  history4    ,many   
instances may be produced in favour of  
both opinions4 ,and in  cases like this1

 the opinions of those celebrated for   
their judgment  and knowledge will be of
 no small weight1 but in some cases we  
must  rest upon conjectures4 ,on this   
subject the two eminent historians1     
,livy and ,sallust1 may be quoted as    
authorities1 the former of whom1  in    
mentioning the ambassadors of ,tarquin1 
who had been guilty of  fomenting       
treasonable conspiracies at ,rome1 says1
 that although they  deserved to be     
treated as enemies for their guilty     
conduct1 yet the  privilege1 which they 
derived from the law of nations1        
prevailed over  every other             
consideration4 ,here we see that the    
rights of ambassadors  could not be     
annulled even by the most criminal acts 
of hostility4  ,but the observation made
 by ,sallust1 relates rather to those   
who come  in the train of an embassy    
than to ambassadors themselves4 ,the law
 of  nations surely then will not deny  
the same privilege to a principal1      
which it evidently allows to those who  

form but a subordinate part in  the     
public mission4 ,the historian says1    
that ,bomilcar was arraigned  and tried 
rather upon principles of equity and    
natural justice1 than  in conformity to 
the law of nations1 as he belonged to   
the train of  ,jugurtha2 who had come to
 ,rome under the pledge of public faith4
    ,equity and natural justice require 
punishment to be inflicted on ,,all     
offenders1 whereas the law of nations   
makes an exception in favour of         
ambassadors1 and those who have the     
public faith for their protection4      
,wherefore to try or punish ambassadors1
 is contrary to the law of  nations1    
which prohibits many things1 that are   
permitted by the law of  nature4    ,the
 law of nations1 thus deviating from the
 law of nature1 gives rise  to those    
interpretations and conjectures1 which  
reconcile with the  principles of       
justice a greater extension of          
privileges than the law  of nature      
strictly allows4 ,for if ambassadors    

were protected against  nothing more    
than violence and illegal constraint1   
their privileges  would confer no       
extraordinary advantage4 ,besides1 the  
security of  ambassadors is a matter of 
much greater moment to the public       
welfare  than the punishment of         
offences4 ,because reparation for the   
misconduct  of an ambassador may be     
looked for from the sovereign1 by whom  
he is  sent1 unless that sovereign      
chuses to expose himself to hostilities 
by approving of his crimes4 ,an         
objection to such privileges is made  by
 some1 who assert1 that it is better for
 one person to be punished  than for    
whole nations to be involved in war4    
,but if a sovereign has  ,,secretly     
given his sanction to the misconduct of 
his ambassador1 his  ,,apparent         
intentions to punish that ambassador    
will not deprive the  injured power of  
the right to seek redress by commencing 
hostilities4    ,on the other hand1 the 
right of ambassadors would rest upon a  

very  slippery foundation if they were  
accountable1 for their actions1 to any  
one but their own sovereigns4 ,for as   
the interests of powers sending1  and of
 those receiving ambassadors1 are in    
general different1 and some  times even 
opposite1 if a public minister were     
obliged to consult the  inclinations of 
both1 there would be no part of his     
conduct1 to which  they might not impute
 some degree of blame4 ,besides although
 some  points are so clear1 as to admit 
of no doubt1 yet universal danger is    
sufficient to establish the equity and  
utility of a general law4 ,for  this    
reason it is natural to suppose1 that   
nations have agreed1 in  the case of    
ambassadors1 to dispense with that      
obedience1 which every  one1 by general 
custom1 owes to the laws of that foreign
 country1 in  which1 at any time1 he    
resides4 ,the character1 which they     
sustain1 is  not that of ordinary       
individuals1 but they represent the     
,majesty of the  ,sovereigns1 by whom   

they are sent1 whose power is limited to
 no local  jurisdiction4 ,as ,cicero1 in
 his eighth ,philippic1 speaking of a   
certain  ambassador1 says1 he carried   
with him the ,majesty of the ,senate1   
and the authority of the ,state4 ,from  
hence it is concluded1 that an          
ambassador is not bound by the laws of  
the country1 where he resides4  ,if he  
commit an offence of a trivial nature1  
it may either be suffered  to pass      
unnoticed1 or he may be ordered to leave
 the country4    ,polybius relates an   
instance of an ambassador1 who was      
ordered to leave  ,rome1 for having     
assisted some hostages in making their  
escape4 ,hence  it is obvious why the   
,romans inflicted corporeal punishment  
upon an  ambassador of ,tarentum1       
because the ,tarentines were at that    
time their  own subjects1 by right of   
conquest4    ,if a crime is of a        
notorious nature1 affecting the         
government1 an  ambassador may be sent  
home1 and his sovereign required to     

punish1 or  deliver him up1 as we read  
of the ,gauls having done to the        
,fabians4  ,but1 as we have before      
occasionally observed1 all human laws   
are framed  upon such principles1 as1 in
 cases of extreme necessity1 to admit   
of equitable relaxations1 among which   
the privileges of ambassadors  may be   
reckoned4 ,but these extreme cases of   
necessity may1 according  to the law of 
nations1 as will be seen hereafter1 in  
discussing the  effects of just and     
solemn war1 prevent punishment in       
,,certain cases1  though not in ,,all4  
,for it is not the act of punishment    
itself1 which is  objected to1 either in
 respect to time1 or manner1 but the    
exemption is  created to prevent the    
greater public evil1 which might arise  
from the  punishment of the offender4   
,to obviate therefore any imminent      
danger1  if no other proper method can  
be devised1 ambassadors may be detained 
and interrogated4 ,thus the ,roman      
,consuls seized the ambassadors of      

,tarquin1 previously taking care to     
secure their papers1 to prevent  the    
evidence1 which they might afford1 from 
being destroyed4 ,but if  an ambassador 
excites and heads any violent           
insurrection1 he may be  killed1 not by 
way of punishment1 but upon the natural 
principle of  self-defence4 ,the ,gauls 
therefore might have put to death the   
,fabii1  whom ,livy calls violators of  
the law of nature4    ,v4 ,mention has  
before been frequently made of the      
exemptions1 by which  ambassadors are   
protected from all personal constraint  
and violence1  and it is understood that
 all powers are bound by a tacit        
agreement1  as it were1 from the time of
 admitting an ambassador1 to respect    
these  exemptions4 ,it ,,may and indeed 
sometimes ,,does happen1 that one power 
gives notice to another that no         
ambassador will be received1 and if  one
 is sent1 that he will be treated as an 
enemy4 ,a declaration to  this effect   
was made by the ,romans to the          

,aetolians1 and1 on another  occasion1  
the ,vejentian ambassadors were ordered 
to leave ,rome1 with a  menace1 if they 
refused to comply1 of being treated in  
the same manner  as the ,roman          
ambassadors had been treated by their   
king ,tolumnius1 who  had put them to   
death4 ,the ,samnites too forbade the   
,romans to go to any  council in        
,samnium1 under pain of forfeiting their
 lives1 or1 at least1  their personal   
safety4    ,the above law does not bind 
a power1 through whose territories      
ambassadors pass without leave4 ,for1 if
 they are going to an enemy  of that    
power1 or returning from him1 or are    
engaged in any hostile  design1 they may
 lawfully be treated as enemies2 which  
was done by the  ,athenians in the case 
of the messengers passing between the   
,persians  and ,spartans1 and by the    
,illyrians in that of those1 who carried
 on the  intercourse between the        
,essians and ,romans4 ,xenophon         
maintains that  in certain cases they   

may be made prisoners1 as ,alexander    
made those1  who were sent from ,thebes 
and ,lacedaemon to ,darius1 and the     
,romans  those1 whom ,philip sent to    
,hannibal1 and ,latius those of the     
,volscians4  ,for to treat ambassadors  
with any degree of rigour1 ,,except     
,,upon ,,those  ,,sufficient ,,grounds1 
would be deemed not only a breach of the
 law of  nations1 but a personal offence
 against the sovereigns1 to whom they   
are going1 or by whom they are sent4    
,justin informs us1 that ,philip  ,,ii1 
king of ,macedon1 sent an ambassador to 
,hannibal with credentials1  empowering 
him to make an alliance1 and that1 when 
this ambassador  was seized and carried 
before the ,senate of ,rome1 they       
dismissed him  without farther          
molestation1 not out of respect to the  
king1 but to  prevent a doubtful enemy  
from becoming a decided one4    ,,vi4   
,but if an embassy1 admitted by an      
,,enemy is entitled to all the          
privileges of the law of nations1 much  

more so is one1 admitted by  a power    
,,unfriendly1 but not engaged in        
,,actual ,,hostilities4 ,diodorus       
,siculus says1 that a messenger with a  
flag of truce claims all the  security  
of peace1 even in the midst of war4 ,the
 ,lacedaemonians1 who  had murdered the 
heralds of the ,persians1 were said by  
that act to  have confounded every      
distinction between right and wrong1 as 
it is  acknowledged by all nations4 ,for
 legal writers lay it down as a rule1   
that to offer personal violence to      
ambassadors1 whose characters are       
deemed sacred1 is a defiance of the law 
of nations1 and ,tacitus calls  the     
privileges we are now discussing1 the   
rights of embassy1 sanctified  by the   
law of nations4    ,cicero1 in his first
 speech against ,verres1 asks1 if       
ambassadors ought  not to be safe in the
 midst of an enemy's country1 or even in
 his camp8  ,innumerable other instances
 of this kind might be produced from the
  highest authorities both ancient and  

modern4 ,and it is with reason that     
such privileges are revered1 for in the 
midst of war many circumstances  arise1 
which cannot be decided but through     
ambassadors1 and it is  the only channel
 through which proposals of peace can be
 made1 and  confirmed4    ,,vii4 ,it is 
frequently made a subject of inquiry1   
whether the ambassador  of a sovereign1 
who has exercised any act of cruelty or 
rigour1 will be  subject to the law of  
retaliation4 ,history furnishes many    
instances1  in which punishment has been
 inflicted in such a manner4 ,but       
history  is sometimes nothing more than 
a catalogue of actions marked with      
injustice1 and ungovernable fury4       
,whereas the law of nations1 by its     
privileges1 designs to secure the       
dignity not only of sovereigns          
themselves1 but also that of the        
ambassadors whom they employ4           
,consequently there is a tacit agreement
 understood to be made with  the latter1
 that ,,he shall be exempt1 not only    

from any ill treatment1  that may affect
 the principal1 but from such likewise1 
as may affect  himself4 ,so that it was 
a magnanimous answer1 conformable to the
 law  of nations1 which ,scipio made1   
when the ,roman ambassadors had been    
ill-treated by the ,carthaginians1 and  
the ,carthaginian ambassadors were      
brought before him1 upon his being      
asked1 in what manner they should  be   
treated1 he replied1 not as the ,roman  
ambassadors had been by the             
,carthaginians4 ,livy adds1 that he     
said1 he would do nothing unbecoming    
the character and laws of the ,roman    
people4 ,valerius ,maximus assigns  the 
same language to the ,consuls1 on an    
occasion similar1 but prior to  this4   
,in addressing ,hanno1 they said1 the   
pledge of faith1 which our  state has   
given1 releases you from any such fear4 
,for even at that  time1 ,cornelius     
,asina1 in violation of his public      
character1 had been  arrested and thrown
 into prison by the ,carthaginians4     

,,viii4 ,the train too of an ambassador1
 and all the plate belonging to  him are
 entitled to a peculiar kind of         
protection4 ,which gave rise to  the    
passage in the ancient song of the      
,heralds1 ,o ,sovereign1 do you  make me
 a royal messenger from the ,roman      
citizens8 and do you confer  the same   
privileges on my train and every thing1 
which belongs to me8  ,and by the       
,julian law1 an injury affecting not    
only ambassadors1 but  even their       
attendants1 is pronounced to be a       
violation of public right4    ,but these
 privileges of attendants are only      
granted so far as an  ambassador himself
 may think proper3 so that if any of    
them has  committed an offence1 he must 
be required to deliver up the offender  
to  punishment4 ,he must be ,,required  
to give him up4 ,because no violence1   
in taking an offender of that           
description must be used4 ,when the     
,achaeans had arrested some             
,lacedaemonians who were along with the 

,roman ambassadors1 the ,romans raised a
 great outcry against the act1  as a    
violation of the law of nations4        
,sallust's opinion in the case of       
,bomilcar has already been referred to4 
,but should the ambassador refuse to    
give up such offender1 redress must  be 
sought in the same manner1 as would be  
done with respect to the  ambassador    
himself4 ,as to his authority over his  
household1 and the  asylum1 which he may
 afford in his house to fugitives1 these
 depend  upon the agreement made with   
the power1 to whom he is sent1 and do   
not  come within the decision of the law
 of nations4    ,,ix4 ,neither can the  
moveable property of an ambassador1 nor 
any thing1  which is reckoned a personal
 appendage1 be seized for the discharge 
of  a debt1 either by process of law1 or
 even by royal authority4 ,for1 to  give
 him full security1 not only his person 
but every thing belonging  to him must  
be protected from all compulsion4 ,if an
 ambassador then  has contracted a debt1

 and1 as is usual1 has no possession in 
the  country1 where he resides3 first of
 all1 courteous application must be     
made to himself1 and1 in case of his    
refusal1 to his sovereign4 ,but  if both
 these methods of redress fail1 recourse
 must be had to those  means of         
recovery1 which are used against debtors
 residing out of the  jurisdiction of   
the country4    ,x4 ,nor is there1 as   
some think1 any reason to fear1 that if 
such  extensive privileges were         
established1 no one would be found      
willing  to enter into any contract with
 an ambassador1 or to furnish him with  
necessary articles4 ,for the same rule  
will hold good in the case of           
ambassadors1 as in that of ,kings4 ,as  
sovereigns1 who for the best  of        
reasons1 are placed above the reach of  
legal compulsion1 find no  difficulty in
 obtaining credit4    ,,xi4 ,the        
importance of such exemptions may be    
easily inferred from the  innumerable   
instances1 in which both sacred and     

profane history abound1  of wars        
undertaken on account of the            
ill-treatment of ambassadors4 ,the  war 
which ,david made against the           
,ammonites1 on that account1 affords  us
 a memorable instance from holy writ2   
and as a profane writer1  ,cicero may be
 cited1 who deemed it the most          
justifiable ground of the  ,mithridatic 
war4    ,illustration3 ,,peace    ,by   
,gari ,melchers--,from a panel painting 
in ,library of ,congress4               
,,chapter ,,xix4    ,,on ,,the ,,right  
,,of ,,burial4      ,right of burying   
the dead founded on the law of          
nations--,origin      of this           
right--,due to enemies--,whether due to 
those guilty      of atrocious          
crimes--,whether to those1 who have     
committed      suicide--,other rights   
also authorised by the law of nations4  
,i4 ,the right of burying the dead is   
one of those originating in the         
voluntary law of nations4 ,next to the  
right of ambassadors ,dion  ,chrysostom 

places that of burying the dead1 and    
calls it a moral act1  sanctioned by the
 unwritten law of nature3 ,and ,seneca1 
the elder1 ranks  the law1 which        
commands us to commit the bodies of the 
dead to their  parent earth1 among the  
,,unwritten precepts1 but says1 they    
have a  stronger sanction than the      
,,recorded laws of all ages can give4   
,for1 in  the language of the ,jewish   
writers1 ,philo and ,josephus1 they are 
marked  with the seal of nature1 and    
under the name of nature1 we comprehend 
the customs1 that are common to all     
mankind1 and agreeable to natural       
reason4    ,we find it some where said  
by ,aelian1 that our common nature calls
  upon us to cover the dead1 and some   
writer1 in another place1 observes  that
 all men are reduced to an equality by  
returning to the common  dust of the    
earth4 ,tacitus informs us1 in b4 vi4 of
 his ,annals1 that1  when ,tiberius made
 a general massacre of all1 who had been
 connected  with ,sejanus1 and that he  

forbad them the rites of burial1 every  
one  was struck with horror to see the  
last offices of humanity refused2       
offices1 which ,lysias the orator calls 
the common hopes of our nature4    ,as  
the ancients measured the moral         
character of every people by their      
observance or neglect of these rights1  
in order to give them a greater         
appearance of sanctity1 they ascribed   
their origin to the authority and       
institutions of their ,gods2 so that in 
every part of their writings we  meet   
with frequent mention of the rights of  
ambassadors1 and the rights  of burial1 
as founded upon divine appointment4     
,in the ,tragedy of the ,suppliants1    
,euripides calls it the law of the      
,gods1 and in the ,antigone of          
,sophocles1 the heroine makes the       
following  reply to ,creon1 who had     
forbidden any one under pain of death1  
to  give the rites of burial to         
,polynices1 ,a prohibition1 like this1  
was  not revealed by the supreme will1  

nor by that heaven-born justice1  which 
has established those laws of respect   
for the dead3 nor did  ,i think that you
 could command mortals to transgress the
 unwritten  and inviolable laws of ,god4
 ,they were not established to-day1 nor 
yesterday1 but from all eternity and    
will for ever be in force4 ,their       
sources are unknown4 ,am ,i through fear
 of a mortal1 and by obeying his  unjust
 commands1 to incur the wrath of        
,heaven8    ,the authority of           
,isocrates1 and of ,herodotus1 and that 
of ,xenophon1 in  the sixth book of his 
,grecian ,history1 may be appealed to in
 support of  the honours1 that have at  
all times been paid to the dead4 ,in    
short1  these offices of humanity are   
recommended by the conspiring testimony 
of the orators1 historians1 poets1      
philosophers and divines of all  ages1  
who have dignified them with the names  
of the most splendid  virtues4    ,,ii4 
,there seems to be no general agreement 
of opinion upon the  origin of funeral  

rites1 and the variety of ways1 in which
 they were  performed4 ,the ,egyptians  
,,embalmed1 and most of the ,greeks     
,,burned the  bodies of the dead before 
they committed them to the grave4       
,cicero1 in  the #bb;d chapter of his   
second ,book on ,laws1 speaks of the    
interment  alone1 which is now in use1  
as the most ancient method1 and that1   
which  is most congenial to nature1 and 
in this he is followed by ,pliny4       
,some think that men paid it as a       
,,voluntary debt of nature1 which  they 
knew that1 ,,at ,,any ,,rate1 they would
 be obliged to discharge4 ,for  the     
divine sentence1 that the body should   
return to the dust1 from  which it was  
taken1 was not passed upon ,adam only1  
but1 as we find it  acknowledged by the 
writings of ,greece and ,rome1 extended 
to the whole  human race4 ,cicero1 from 
the ,hypsipyle of ,euripides1 says1     
,earth  must be returned to earth1 and  
in the twelfth chapter of ,solomon's    
,ecclesiastes1 there is a passage to the

 same purport1 that the dust  shall     
return to the earth as it was1 but the  
spirit to ,god1 who gave  it4 ,euripides
 has enlarged on this subject in the    
character of  ,theseus in his           
,suppliants1 ,suffer the dead to be laid
 in the lap of  the earth2 for every    
thing returns to its original state1 the
 spirit  to heaven1 and the body to the 
earth3 ,neither of them is given in     
plenary possession1 but only for a short
 use3 ,the earth soon demands  back the 
bodies1 to which she had given birth and
 nourishment4 ,in the  same manner      
,lucretius calls the earth a prolific   
parent and a common  grave4 ,pliny also 
describes the earth1 as receiving us at 
our birth1  cherishing our growth1      
supporting us to the very last1 and1    
when all  the other parts of nature have
 forsaken us1 taking us to her maternal 
bosom1 and covering us with a mantle4   
,there are some1 who think that the     
custom of burial was bequeathed  to us  
by our first parents as a testamentary  

hope of a resurrection4  ,for we are    
instructed by ,democritus to believe1   
that our bodies are  preserved in the   
earth under the promise of a restoration
 to life4 ,and  ,christians in          
particular have frequently ascribed the 
custom of decent  burial to the same    
hope4 ,prudentius a ,christian poet     
says1 ,what can  be the meaning of      
hallowed rocks1 or splendid monuments1  
except that  they are the depositories  
of bodies1 consigned not to death1 but  
to a  temporary sleep8    ,but the most 
obvious explanation is to be found in   
the dignity of man1  who surpassing     
other creatures1 it would be a shame1 if
 his body were  left to be devoured by  
beasts of prey4 ,it is an act of        
compassion  then1 said ,quintilian1 to  
preserve the bodies of men from ravages 
of  birds and beasts4 ,for to be tore by
 wild beasts1 as ,cicero observes  in   
his first book ,,on ,,invention1 is to  
be robbed of those honours1 in  death1  
which are due to our common nature4 ,and

 the ,roman ,poet1 makes a  lamentation 
over one of his heroes1 that he had no  
pious mother to lay  his body in the    
grave1 but he would be left a prey to   
birds1 or thrown  into the river as food
 for fishes4 ,aen4 x4 #eeg-efj4    ,but 
to speak from still higher authority1   
,god1 by the mouth of his  prophets1    
threatens the wicked that they shall    
have burial like that  of the brutes1   
and that the dogs shall lick their      
blood4 ,such a menace  denounced against
 the wicked1 as a punishment1 shews that
 it is an  indignity done to our nature1
 when1 in the words of ,lactantius1 the 
image of ,god is cast out1 to the       
insults of beasts of prey4 ,but in such 
indignity if there was even nothing     
repugnant to the feelings of men1  still
 the nakedness and infirmities of our   
perishable nature should not  be exposed
 to the eye of day4    ,consequently the
 rights of burial1 the discharge of     
which forms one  of the offices of      
humanity1 cannot be denied even to      

enemies1 whom a  state of warfare has   
not deprived of the rights and nature of
 men4 ,for1  as ,virgil observes1 all   
animosity against the vanquished and the
 dead  must cease4 ,aen4 xi4 #ajd4      
,because they have suffered the last of 
evils  that can be inflicted4 ,we have  
been at war1 ,i grant1 says ,statius1   
but our hatred has fallen1 and all our  
enmity is buried in the grave4  ,and    
,optatus ,milevitanus assigns the same  
reason for reconciliation4 ,if  there   
have been struggles among the living1   
your hatred surely must be  satisfied   
with the death of an adversary4 ,for the
 tongue of strife is  now silenced4     
,,iii4 ,upon the principles advanced    
above1 it is agreed by all that  public 
enemies are entitled to burial4 ,appian 
calls it the common right  of war1 with 
which1 ,tacitus says1 no enemy will     
refuse to comply4 ,and  the rules1      
respecting this1 are1 according to ,dio 
,chrysostom1 observed1  even while the  
utmost rage of war still continues4 ,for

 the hand of  death1 as the writer just 
quoted observes1 has destroyed all      
enmity  towards the fallen1 and         
protected their bodies from all insult4 
,examples to this purpose may be found  
in various parts of history4  ,alexander
 ordered those of the enemy1 that were  
killed at the battle  of ,issus to be   
honoured with the rites of burial1 and  
,hannibal did  the same to ,caius       
,flaminius1 ,publius ,aemilius1         
,tiberius ,gracchus1 and  ,marcellus1   
the ,roman ,generals4 ,so that you would
 suppose1 says ,silius  ,italicus1 he   
had been paying these honours to a      
,carthaginian ,general4  ,the ,romans   
treated ,hanno1 and ,pompey ,mithridates
 in the same manner4 ,if  it were       
necessary to quote more instances1 the  
conduct of ,demetrius on  many          
occasions1 and that of ,antony to king  
,archelaus might be named4    ,when the 
,greeks were at war with the ,persians1 
in one part of their  military oath they
 swore to bury all the dead belonging to

 the ,,allies1  and when they were      
victorious1 to bury even the            
,,barbarians4 ,after  a battle1 it was  
usual for both sides to obtain leave to 
bury the  dead4 ,pausanias1 in his      
account of the ,athenian affairs1       
mentions the  practice of the ,athenians
 who buried the ,medes1 regarding it as 
an act  of piety due to all men4 ,we    
find from the ,jewish writers1 that for 
the  same reason1 their high priests1   
who were forbidden to come near a  dead 
body1 if they found one1 were obliged to
 bury it4 ,but ,christians  deemed      
,,burial an act of such importance1 that
 they would allow their  church-plate to
 be melted down1 and sold to defray the 
expences as they  would have done to    
maintain the poor1 or to redeem         
captives4    ,there are some few        
instances to the contrary1 but they are 
reprobated  by the universal feelings of
 mankind1 and such cruelty deprecated in
  the most solemn terms4 ,claudian calls
 it a bloody deed to plunder the  dead1 

and still more so to refuse them the    
covering of a little sand4    ,,iv4     
,respecting those1 who have been guilty 
of atrocious crimes1 there  is reason to
 entertain some doubt1 whether the right
 of burial is due  to them4    ,the     
divine law indeed1 that was given to the
 ,hebrews1 and which is  fraught with   
every precept of virtue and humanity1   
ordered those1 who  were crucified1     
which was the most ignominious kind of  
punishment that  could be inflicted1 to 
be buried on the same day4 ,owing to    
this law1 as  ,josephus observes1 the   
,jews paid such regard to burial1 that  
the bodies  of those1 who were executed 
publicly as criminals1 were taken away  
before sun-set1 and committed to the    
ground4 ,and other ,jewish writers  are 
of opinion that this was intended as a  
degree of reverence to the  divine      
image1 after which man was formed4      
,to allow burial to criminals must have 
been the practice in the time  of       
,homer3 for we are told1 in the third   

book of the ,odyssey1 that  gisthus1 who
 had added the crime of murder to that  
of adultery1 was  honoured with funeral 
ceremonies by ,orestes1 the son of the  
murdered  king4 ,it was the custom with 
the ,romans1 as may be seen from        
,ulpian1  never to refuse giving the    
bodies of criminals to their relatives1 
to  bury4 ,the ,emperors1 ,diocletian1  
and ,maximian1 in a rescript1 declared1 
that they did not refuse to deliver up1 
for burial1 those1 who had  deservedly  
been put to death for their crimes4     
,in reading the history of civil wars2  
we find more frequent instances  of     
indignities offered to the dead1 than in
 the accounts of any foreign  wars4 ,in 
some cases1 the bodies of executed      
criminals are exposed to  public view1  
and hung in chains1 a custom the        
propriety of which is  very much doubted
 both by ,theological and ,political    
writers4 ,so far  from approving of the 
practice1 we find such writers bestowing
 praises  upon many1 who had ordered    

funeral honours to be paid to those1 who
  would not themselves have allowed the 
same to others4 ,an action of this  kind
 was done by ,pausanias the             
,lacedaemonian1 who1 being urged by the 
people of ,aegina to retaliate upon the 
,persians for their treatment  of       
,leonidas1 rejected the advice1 as      
unbecoming his own character and  the   
,grecian name4 ,the ,pharisees allowed  
burial even to ,king ,jannaeus          
,alexander1 who had treated the dead    
bodies of their countrymen with  every  
kind of insult4 ,though indeed on       
certain occasions1 ,god may have        
punished some offenders with the loss of
 such a right1 he did so by  virtue of  
his own prerogative1 which places him   
above the restrictions  of all law4 ,and
 when ,david exposed the head of        
,goliah1 it was done to  one1 who was an
 alien1 and a despiser of ,god1 and     
might be justified by  that law1 which  
confined the name and privileges of     
neighbour to the  ,hebrews4    ,v4      

,there is one thing not improper to be  
observed1 that the rule  prevailing     
among the ,hebrews with respect to      
burying the dead1  contained an         
exception1 as we are informed by        
,josephus1 excluding  those1 who had    
committed suicide4 ,nor is it surprising
 that a mark of  ignominy should be     
affixed to those1 on whom death itself  
cannot be  inflicted as a punishment4   
,aristotle in the fifth book of his     
,ethics1  speaks of the infamy          
universally attached to suicide4 ,nor is
 the  observation at all weakened by the
 opinions of some of the ,grecian       
poets1 that as the dead are void of all 
perception1 they cannot be  affected    
either by loss or shame4 ,for it is a   
sufficient reason to  justify the       
practice1 if the living can be deterred 
from committing  actions1 for which they
 see a mark of infamy set upon the dead4
    ,in opposition to the ,stoics1 and  
others1 who admitted the dread of       
servitude1 sickness1 or any other       

calamity1 or even the ambitious  love of
 glory to be a just cause of voluntary  
death1 in opposition to  them1 the      
,platonists justly maintain1 that the   
soul must be retained  in the custody of
 the body1 from which it cannot be      
released1 but at  the command of him1   
who gave it4 ,on this subject there are 
many fine  thoughts in ,plotinus1       
,olympiodorus1 and ,macrobius on the    
dream of  ,scipio4    ,brutus1 following
 the opinions of the ,platonists1 had   
formerly  condemned the death of ,cato1 
whom he himself afterwards imitated4 ,he
  considered it as an act of impiety for
 any one to withdraw himself from  his  
allegiance to the supreme being1 and to 
shrink from evils1 which  he ought to   
bear with fortitude4 ,and ,megasthenes1 
as may be seen1 in  ,strabo book ,,xv4  
remarked the disapprobation1 which the  
,indian sages  expressed of the conduct 
of ,calanus3 for it was by no means     
agreeable  to their tenets1 that any    
one1 through impatience1 should quit his

 post  in life4 ,in the fifth book of   
,quintus ,curtius1 there is an          
expression  of ,king ,darius to this    
effect1 that he had rather die by       
another's  guilty hand than by his own4 
,in the same manner the ,hebrews call   
death  a release1 or dismission1 as may 
be seen not only in the ,gospel of ,st4 
,luke1 ch4 ii4 v4 #ai1 but in the ,greek
 version of the ,old ,testament1  ,gen4 
xv4 #b1 and ,numb4 xx1 towards the      
conclusion3 and the same way of         
speaking was used by the ,greeks4       
,plutarch1 in speaking of consolation1  
calls death the time1 when ,god shall   
relieve us from our post4    ,,vi4      
,there are certain other rights too1    
which owe their origin to  the voluntary
 law of nations1 such as the right of   
possession from  length of time1 the    
right of succession to any one who dies 
intestate1  and the right resulting from
 contracts1 though of an unequal kind4  
,for though all these rights1 in some   
measure1 spring from the law of  nature1

 yet they derive their confirmation from
 human law1 whether it  be in opposition
 to the uncertainty of conjecture1 or to
 certain other  exceptions1 suggested by
 natural reason3 points1 all of which   
have been  slightly touched upon in our 
discussions on the law of nature4       
,,chapter ,,xx4    ,,on ,,punishments4  
,definition and origin of               
punishment--,in what manner punishment  
relates to strict justice--,the right of
 punishing allowed by      the law of   
nature1 to none1 except to those1 who   
are innocent      of the crimes and     
misdemeanours to be                     
punished--,difference      of motive    
between human and divine punishment--,in
 what sense      revenge is naturally   
unlawful--,the advantages of punishment1
      threefold--,the law of nature     
allows any one to inflict punishment    
upon an offender1 yet with a            
distinction--,the regard which the      
law of nations pays to the benefit of   
the injured party1 in the               

infliction of punishment--,general      
utility of punishments--,what      is   
determined by the law of the ,gospel1 in
 this respect--,answer      to the      
objections founded upon the mercy of    
,god1 as displayed in      the          
,gospel--,capital punishments objected  
to as cutting off all      possibility  
of repentance--,not safe for private    
,christians to      inflict punishments1
 even when allowed to do so1 by the law 
of      nations--,prosecutions1 for     
certain offences1 to be carried on      
in the name of the public and not of    
individuals--,internal acts      not    
punishable by man--,open acts1 when     
inevitable through human      infirmity 
not punishable--,actions1 neither       
directly nor indirectly      injurious  
to society1 not punishable by human     
laws--,the reasons      of that         
exemption--,the opinion1 that pardon can
 never be granted1      refuted--,pardon
 shewn to be allowable before the       
establishment of      penal law--,but   

not in all cases--,allowable also       
subsequently to the      establishment  
of penalties--,internal and external    
reasons--,opinion1      that there can  
be no just reason for dispensing with   
laws1 except      where such            
dispensation can be implied as          
authorised by the law1      examined and
 refuted--,punishment estimated by the  
desert of      the offender--,different 
motives compared--,motives which ought  
to restrain men from sin--,scale of     
offences according to the      precepts 
of the ,decalogue--,capacity of the     
offender--,punishment      mitigated    
from motives of charity1 except where   
there are stronger      motives of an   
opposite kind--,facility or familiarity 
of crimes      aggravates their         
nature--,clemency1 proper exercise      
of--,views of      the ,jews and ,romans
 in inflicting punishment--,war         
considered as      a                    
punishment--,whether hostilities can    
justly be commenced for      intended   

aggressions--,whether ,kings and        
,nations are justified      in making   
war to punish offences against the law  
of nature1 not      immediately         
affecting themselves or their           
subjects--,the opinion1      that       
jurisdiction is naturally necessary to  
authorise punishment1                   
refuted--,distinction between the law of
 nature1 and civil customs1      and the
 divine voluntary law--,the question1   
whether war can be      undertaken to   
punish acts of impiety--considered--,the
 being of      ,god1 whence             
known--,refusal to embrace the          
,christian religion not a               
sufficient cause of war--,cruel         
treatment of ,christians1 justifiable   
cause of war--,open defiance of religion
 punishable4      ,i4 ,in the preceding 
part of this treatise1 where the causes1
 for which  war may be undertaken1 were 
explained1 it was considered in a       
two-fold  light1 either as a reparation 
for injuries1 or as a punishment4 ,the  

first of these points having been       
already cleared up1 the latter1 which   
relates to punishments1 remains to be   
discussed1 and it will require a  more  
ample investigation2 for the origin and 
nature of punishment1 not  being        
perfectly understood1 has given rise to 
many errors4    ,punishment taken in its
 most general meaning signifies the pain
 of  suffering1 which is inflicted for  
evil actions4 ,for although labour may  
some times be imposed instead of        
punishment2 still it is considered  in  
that case1 as a hardship and a grievous 
burden1 and may therefore  properly be  
classed with sufferings4 ,but the       
inconveniences1 which  men are some     
times exposed to1 by being excluded from
 the intercourse  of society and the    
offices of life1 owing to infectious    
disorders1  or other similar causes1    
which was the case with the ,jews on    
account  of many legal impurities1 these
 temporary privations are not to be     
strictly taken for punishments3 though  

from their resemblance to each  other1  
they are often1 by an abuse of terms1   
confounded4    ,but among the dictates  
laid down by nature1 as lawful and just1
 and  which the ancient ,philosophers   
call the law of ,rhadamanthus1 the      
following maxim may be placed1 ,,that   
,,it ,,is ,,right ,,for ,,every ,,one   
,,to ,,suffer  ,,evil ,,proportioned    
,,to ,,that ,,which ,,he ,,has ,,done4  
,which gave occasion to ,plutarch1 in   
his book on exile1 to say that  justice 
is an attribute of ,god1 avenging all   
transgressions of the  divine law2 and  
we apply it as the rule and measure of  
our dealings  with each other4 ,for     
though separated by the arbitrary or    
geographical  bounds of territory1 the  
eye of nature looks upon all1 as fellow 
subjects of one great empire4 ,hierocles
 gives a fine character of  justice1    
calling it the healing remedy of all    
mischief4 ,lactantius in  speaking of   
the divine wrath calls it no            
inconsiderable mistake in  those1 who   

degrade human or divine punishment with 
the name of cruelty  or rigour1         
imagining that some degree of blame must
 always attach to  the punishment of the
 guilty4 ,what has been said of the     
inseparable  connection of a penalty    
with every offense is similar to the    
remark of  ,augustin1 that to make a    
punishment ,,just1 it must be inflicted 
for  some crime4 ,he applies the        
expression to explain the divine        
justice1  where through human ignorance1
 the offence is often undiscoverable    
though the judgment may be seen4        
,,ii4 ,there are diversities of opinion 
whether punishment comes under the  rank
 of ,,attributive or that of ,,strict   
justice4 ,some refer it to justice  of  
the attributive kind1 because offences  
are punished more or less1  in          
proportion to their consequences1 and   
because the punishment is  inflicted by 
the whole community1 as it were1 upon an
 individual4    ,it is undoubtedly one  
of the first principles of justice to   

establish  an equality between the      
penalty and the offence4 ,for it is the 
business  of reason1 says ,horace1 in   
one of his ,satires1 to apply a rule and
  measure1 by which the penalty may be  
framed upon a scale with the  offence1  
and in another place1 he observes1 that 
it would be contrary  to all reason to  
punish with the rack a slave1 who       
deserved nothing  more than the whip4   
,i4 ,sat4 iii4 v4 #gg1 and #aai4 ,the   
divine law1 as  may be seen from the    
xxv4 ,chapter of ,deuteronomy1 rests    
upon the same  principle4    ,there is  
one sense1 in which all punishment may  
be said to be a  matter of strict       
justice4 ,thus1 when we say that        
punishment is due  to any one1 we mean  
nothing more than that it is right he   
should be  punished4 ,nor can any one   
inflict this punishment1 but the person1
  who has a right to do so4 ,now in the 
eye of the law1 every penalty is        
considered1 as a debt arising out of a  
crime1 and which the offender  is bound 

to pay to the aggrieved party4 ,and in  
this there is something  approaching to 
the nature of contracts4 ,for as a      
seller1 though no  ,,express stipulation
 be made1 is understood to have bound   
himself by all  the ,,usual1 and        
,,necessary conditions of a sale1 so1   
punishment being a  natural consequence 
of crime1 every heinous offender appears
 to have  ,,voluntarily incurred the    
penalties of law4 ,in this sense some of
 the  ,emperors pronounced sentence upon
 malefactors in the following manner1   
you have brought this punishment upon   
,yourselves4 ,indeed every wicked       
action done by design was considered as 
a voluntary contract to submit  to      
punishment4 ,for1 as ,michael the       
,ephesian observes on the fifth  book of
 ,aristotle's ,nicomachean ,ethics1 the 
ancients gave the name of  contract1 not
 only to the voluntary agreements which 
men made with each  other1 but to the   
obligations arising from the sentence of
 the law4    ,,iii4 ,but to whom the    

right of punishing properly belongs1 is 
a matter  not determined by the law of  
,,nature4 ,for though reason may point  
out  the necessity of punishing the     
guilty1 it does not specify the         
,,person1  to whom the execution of it  
is to be committed4    ,natural reason  
indeed does so far point out the person1
 that it is  deemed most ,,suitable for 
a ,,superior ,,only to be invested with 
the power  of inflicting punishment4    
,yet this demonstration does not amount 
to  an ,,absolute ,,necessity1 unless   
the word superior be taken in a sense   
implying1 that the commission of a crime
 makes the offender inferior  to every  
one of his own species1 by his having   
degraded himself from  the rank of men  
to that of the brutes1 which are in     
subjection to man2  a doctrine1 which   
some ,theologists have maintained4      
,philosophers too  agreed in this4 ,for 
,democritus supposed that power         
naturally belonged  to superior merit1  
and ,aristotle was of opinion that both 

in the  productions of nature and art   
the inferior were provided for the use  
of  the superior parts4    ,from this   
opinion there arises a necessary        
consequence1 that in a case  where there
 are equal degrees of guilt in two      
parties1 the right of  punishment       
belongs to neither4    ,in conformity to
 which1 our ,saviour1 in the case of the
 woman taken  in adultery1 pronounced   
that whoever of the accusers was without
 sin1  meaning sins of equal enormity1  
should cast the first stone4 ,john viii4
  #g4 ,he said so for this reason1      
because in that age the manners of the  
,jews were so corrupt1 that1 under a    
great parade of sanctity1 the  most     
enormous vices1 and the most wicked     
dispositions were concealed4  ,a        
character of the times which the        
,apostle has painted in the most        
glowing colours1 and which he closes    
with a reproof similar to what  his     
divine master had given1 therefore thou 
art inexcusable1 ,o man1  whosoever thou

 art that judgest3 for wherein thou     
judgest another thou  condemnest        
thyself2 for thou that judgest doest the
 same things4 ,rom4  ii4 #a4 ,applicable
 to which there is a remark of          
,seneca's1 that no  sentence1 which is  
passed by a guilty person can have any  
weight4  ,and in another place1 the same
 writer observes1 that if we look into  
ourselves and consider whether we have  
been guilty of the offences we  are     
going to condemn1 we shall be more      
moderate in our judgments4    ,,iv4     
,another part of our inquiry respects   
the end proposed by  punishment4 ,for by
 what has hitherto been said1 it was    
only meant to  shew that in punishing   
the guilty no injury is done to them4   
,still  the absolute necessity of       
punishment does not follow from thence4 
,for  the pardon of the guilty on many  
occasions has been considered as the    
most beauteous feature in the divine and
 human character4 ,plato is  celebrated 
for his saying that justice does not    

inflict punishment  for the evils that  
are done and cannot be retrieved2 but to
 prevent  the same from being done for  
the time to come4 ,from ,thucydides we  
find that ,diodorus in addressing the   
,athenians on the conduct of  the       
,mitylenaeans1 advises them to forbear  
punishing their avowed  injustice1      
unless it was probable that the         
punishment would be attended  with some 
good effect4    ,these maxims may be    
true with regard to human punishments3  
for one man  being so nearly allied to  
another by blood1 no degree of suffering
  should be inflicted1 but for some     
consequent good4 ,but the case is       
different with respect to ,god1 to whom 
,plato injudiciously applies  the above 
sentiments4 ,for though the divine      
counsels will undoubtedly  have the good
 of men in view1 as the end of all      
punishment1 yet the  bare reformation of
 the offender cannot be the sole object4
 ,since the  divine justice1 though     
tempered with mercy must adhere to the  

truth  of the revealed word1 which      
threatens the wicked with punishment or 
destruction4    ,the honour therefore of
 ,god1 as well as the example held up to
 men1  will be a consequence resulting  
from his punishment of the wicked4      
,v4 ,a dramatic writer has said that the
 pain of an enemy is a healing  remedy  
to a wounded spirit1 in which he agrees 
with ,cicero and  ,plutarch3 in the     
opinion of the former pain is mitigated 
by the  punishment of an adversary1 and 
in that of the latter satisfaction is  a
 sweet medicine to a troubled mind4     
,but a disposition like this1 when      
stripped of all disguise and false      
colouring1 will be found by no means    
suitable to the reasonable soul of  man1
 whose office it is to regulate and     
controul the affections4 ,nor  will that
 disposition receive any sanction from  
the law of nature1 who  in all her      
dictates1 inclines to unite men in      
society by good will1  rather than to   
separate them by cherishing animosity4  

,for it is laid  down by reason1 as a   
leading axiom in her code of laws1 that 
no man  shall do any thing which may    
hurt another1 unless it be for the      
purpose  of some evident and essential  
good4 ,but the pain of an enemy         
considered  solely of such1 is no       
benefit to us1 but a false and imaginary
 one1  like that derived from           
superfluous riches or things of the same
  kind4#ec    ,in this acceptation      
revenge is condemned both by ,christian 
teachers  and heathen philosophers4 ,in 
this respect1 the language of ,seneca   
approaches very near to the perfection  
of ,christian morals4 ,he calls         
revenge1 in its usual and proper        
acceptation1 a term of inhumanity1      
differing from injury only in degree4   
,for retaliation of pain can  be        
considered as nothing better than       
excusable sin4 ,juvenal1 after          
describing the different tempers1 over  
which revenge exercises the most        
powerful dominion1 and shewing the      

amiable characters over which it has  no
 influence1 concludes it to be the      
pleasure of a little and infirm  mind4  
,from the preceding arguments it is     
plain that punishment cannot justly  be 
inflicted from a spirit of revenge4 ,we 
proceed therefore to consider  the      
advantages attending its just           
infliction4    ,,vi4 ,this seems the    
most proper place for reviewing those   
distinctions  in the motives of         
punishment1 which have been used by     
,plato in his  ,gorgias1 and by ,taurus 
the philosopher in a passage quoted by  
,gellius  in the fourteenth chapter of  
his fifth book4 ,these distinctions seem
 to  result naturally from the end of   
all punishment4 ,plato indeed considers 
the amendment of the offender1 and the  
example given to others1 as the  two    
principal motives3 but ,taurus has added
 a third1 which he calls  satisfaction1 
and which is defined by ,clemens        
,alexandrinus1 to be  repayment of evil1
 contributing to the benefit of both the

 aggrieved  and avenging party4         
,aristotle passing over example as a    
motive1  confines the object of         
punishment to the amendment or          
correction of the  offender4 ,but       
,plutarch has not made the same         
omission3 for he has said1  that where  
immediate punishment follows the        
execution of a heinous  crime1 it both  
operates to deter others from committing
 the same crime1  and administers some  
degree of consolation to the injured and
 suffering  person4 ,and this is what   
,aristotle calls commutative justice4   
,but  these matters require a more      
minute inquiry4 ,we may observe         
therefore  that there is nothing        
contrary either to human or divine law1 
in  punishments1 which have the good of 
the offender1 or that of the  injured   
party1 or of any persons whatsoever in  
view4    ,the three proper ends are     
obtained by that kind of punishment1    
which  some philosophers have called    
correction1 some chastisement1 and      

others  admonition4 ,paulus the ,lawyer1
 has given it the name of correction2   
,plato styles it a lesson of            
instruction1 and ,plutarch a medicine of
  the soul1 reforming and healing the   
sufferer1 while it operates as a        
painful remedy4 ,for as all deliberate  
acts1 by frequent repetition1  produce a
 propensity1 which ripens into habit1   
the best method of  reforming vices in  
their earliest stage is to deprive them 
of their  sweet savour by an infusion of
 subsequent pain4 ,it is an opinion  of 
the ,platonists1 repeated by ,apuleius1 
that impunity and the  delay of reproof 
are more severe and pernicious to an    
offender than  any punishment           
whatsoever1 and1 in the words of        
,tacitus1 violent  disorders must be    
encountered with remedies proportionably
 strong4    ,,vii4 ,the power of        
inflicting the punishment1 subservient  
to this end1  is allowed by the law of  
nature to any one of competent judgment1
 and  not implicated in similar or equal

 offences4 ,this is evident as far  as  
verbal reproof goes1 from the maxim of  
,plautus1 that to bestow  merited       
reproof upon a friend is useful1 upon   
certain occasions1 though  by no means a
 grateful office4 ,but in all kinds of  
constraint and  compulsion1 the         
difference made between the persons1 who
 are allowed1  and who are not allowed  
to exercise it is no appointment of     
natural  law1 but one of the positive   
institutions of the civil law4 ,for no  
such natural distinction could be made1 
any farther than that reason  would     
intrust parents with the peculiar use of
 such an authority1  in consideration of
 their affection4 ,but laws1 in order to
 avoid  animosities1 have1 with respect 
to the authority of punishing1 passed   
over the common kindred subsisting among
 mankind1 and confined it to  the       
nearest degrees of relation3 as may be  
seen in many records1 and  particularly 
in the code of ,justinian1 under the    
title of the ,,power  ,,of ,,relatives  

,,to ,,correct ,,in ,,order ,,to        
,,reform ,,offenders4 ,and ,cyrus1 in   
the v4 book and viii4 chapter of        
,xenophon's history of the ,expedition1 
addresses the soldiers to the following 
purport1 ,if ,i punish any one  for his 
good1 ,i am willing to submit to        
justice2 but would it not be  equally   
reasonable that parents and masters     
should submit to justice1  for having   
corrected children1 or the ,surgeon be  
responsible for having  used the        
incision-knife1 where the patient's case
 required it8    ,but this kind of      
corrective punishment does not extend to
 death1 which  cannot be considered1 as 
a benefit in itself1 except ,,indirectly
 and  ,,by ,,way ,,of ,,reduction1 as it
 is called by ,logicians1 who1 in order 
to  confirm negatives1 reduce them to   
things of an opposite kind4 ,thus1  in  
,mark xiv4 #ba1 when our ,saviour says1 
that it were better for some1  they had 
never been born1 so1 for incurable      
dispositions1 it is better1  that is    

would be a less evil1 to die than to    
live2 since it is certain  that by      
living they will grow worse4 ,plutarch  
calls such men a pest to  others1 but   
the greatest pest to themselves4 ,galen 
says that capital  punishments are      
inflicted to prevent men from doing harm
 by a longer  course of iniquity1 and to
 deter others by the fear of punishment1
  adding that it is better men should   
die1 when they have souls so  infected  
with evil1 as to be incurable4    ,there
 are some1 who think that these are the 
persons meant by the  ,apostle ,john1   
who describes them as sinning a sin unto
 death4 ,but as  their arguments are not
 satisfactory1 charity requires that no 
one  should be deemed incorrigible1     
except upon the clearest grounds4 ,so   
that punishment with such an end in view
 can only be inflicted for  important   
causes4    ,,viii4 ,the benefit accruing
 to an injured person from the          
punishment  of an offender consists in  
his being secured in future against a   

recurrence of the same injury from that 
offender1 or from others4  ,there are   
three ways of preventing this           
recurrence--by removing the             
offender--by depriving him of the power 
of doing harm1 or lastly by  compelling 
him to better habits of thought or      
action1 which is the  reformation       
produced by the punishment already      
spoken of4 ,it is not  every kind of    
punishment1 which can produce such      
effects2 it must be  open and           
conspicuous1 to operate as an example1  
that may deter others  from the         
commission of the same crimes4 ,a       
vindictive punishment1  inflicted by an 
injured individual1 or by any other     
person1 when it  is restrained by bounds
 and limitations of this kind1 has      
nothing  unlawful in it considering the 
law of nature by itself1 apart from all 
human and divine institutions1 and every
 adventitious circumstance1  that may   
create a deviation from the primitive   
dictates of nature4 ,we  have said that 

it may be inflicted by any other        
individual1 as well  as by the injured  
person3 for it is conformable to nature1
 that one  man should assist another4   
,but as our judgment is apt to be       
biassed  by our affections1 in cases1   
where our interest is concerned2 since  
the formation of families into states1  
judges have been appointed1 and         
invested with the power of punishing the
 guilty1 whereby the natural  liberty of
 personal redress1 originally allowed to
 individuals1 was  abolished1 or at     
least abridged4 ,and it is only in      
places1 on the seas  for instance1 where
 no judicial remedy can be obtained1    
that this  natural liberty continues in 
force4 ,there is a circumstance related 
of ,julius ,caesar1 applicable to this  
subject4 ,while he was only in a        
private station1 being taken prisoner by
 some pirates1 after he had  redeemed   
himself by a sum of money1 he applied to
 the proconsul for  redress4 ,but his   
application being neglected1 he fitted  

out a certain  number of ships1 attacked
 and defeated the pirates1 and ordered  
them  all to be crucified4    ,the      
practice of private individuals1        
exercising punishment1 was the  origin  
of single combats1 so familiar to the   
,germans before the  introduction of    
,christianity1 and not yet sufficiently 
laid aside4  ,we are informed by        
,velleius ,paterculus1 in his second    
book1 that the  ,germans were surprised 
to see the forms of ,roman              
jurisprudence1 and  those disputes1     
which they themselves decided by the    
sword1 settled  by law4 ,by the ,jewish 
law1 the nearest in blood to the        
deceased were  allowed to kill a        
murderer1 if taken beyond the places of 
refuge4  ,and the ,jewish interpreters  
observe1 that in ,,general the          
infliction  of punishment1 as a         
retaliation for murder1 it intrusted to 
no hand1  but that of the judge3 as it  
is difficult for an individual in his   
own case to moderate his resentment4    

,the same custom of allowing            
individuals to avenge their own wrongs  
prevailed among the ancient  ,greeks1 as
 we find from the words of              
,theoclymenes1 in ,homer's ,odyssey4    
,but it prevailed most in countries1    
where public courts of justice were  not
 established4 ,from hence ,st4 ,augustin
 defines those wars to be just1  which  
are intended to avenge injuries4 ,and   
,plato1 in his twelfth book  ,,on ,a    
,,commonwealth1 justifies the           
prolongation of hostilities1 till the   
aggressor is reduced to submit to just1 
and equitable terms4    ,,ix4 ,,general 
utility which was considered as the     
third end proposed  by punishment1 may  
be divided into the same number of      
parts1 as the  benefit accruing from    
thence to individuals4 ,for these are   
the objects  in view1 either to prevent 
the individual1 who has injured one     
person1  from doing injury to others3 an
 object which can be accomplished only  
by removing the offender1 disarming him 

of the means of farther injury1  or by  
reforming him3 or it may be inflicted to
 deter others from being  allured1 by an
 example of impunity1 to commit acts of 
molestation or  enmity4 ,and the        
infliction of punishment1 for such      
reasons1 is a ,,right  granted by the   
law of nature to every individual4 ,upon
 this principle1  ,plutarch observes in 
the life of ,pelopidas1 that good men   
are designed  by nature for the office  
of perpetual magistracy1 and superiority
  belongs to those1 in whom the         
characters of truth and justice unite4  
,but as it requires a painful degree of 
patience to examine into facts1  and no 
inconsiderable share of skill and equity
 to affix the extent  of punishments2 in
 order to prevent quarrels from arising 
through the  presuming conceit1 which   
every man entertains of his own wisdom1 
and to  which others are averse to      
yield2 in all well regulated            
communities1  it has been usual to      
select for the tribunals of justice     

those1 who  were deemed worthy of such  
honour1 or likely to become so1 from    
their  integrity and wisdom4 ,democritus
 has said1 there would have been no     
occasion for laws to prevent every man  
from living according to his own        
humour1 if one had not done injury to   
another4 ,for envy was the origin  of   
strife4 ,but as we have just observed1  
that it happens1 in the case  of        
revenge1 so in this kind of punishment1 
inflicted for the sake of  example1     
there are traces and remains of ancient 
law1 in those places1  and among those  
persons1 that are subject to no ,,civil 
jurisdiction2  and in certain other     
cases besides4 ,thus any ,hebrew1       
according to the  customs of that       
people1 if he should turn away from     
,god1 or from the  law of ,god1 or      
should seduce others to false worship1  
might immediately  be put to death by   
any one whatsoever4 ,the ,hebrews call  
that an act of  ,,zeal1 which was first 
done by ,phinehas1 and which afterwards 

became  a custom4 ,thus ,mattathias slew
 a ,jew1 who was polluting himself with 
,grecian rites4 ,in the same manner1 in 
the book commonly called the  third book
 of ,maccabees1 it is related that three
 hundred other ,jews  were put to death 
by their own countrymen4 ,nor could any 
other pretext  be assigned for stoning  
,stephen1 and conspiring against ,paul4 
,philo1  and ,josephus abound in        
instances of this kind4 ,there are many 
countries  where we may trace the       
remains of primitive law1 in the plenary
 power  allowed to masters over their   
slaves1 and to parents over their       
children1 extending even to inflict the 
punishment of death4 ,so the  ,ephori of
 ,sparta might put a citizen to death   
without the formality of  trial4 ,from  
what has been said1 it is easy to infer 
what punishment the  law of nature      
authorises1 and how far it has remained 
in force4    ,x4 ,we come now to        
consider whether the law of the ,gospel 
has confined  that liberty within closer

 bounds4 ,it has been observed in       
another  part of this treatise1 that it 
is not surprising that some things1     
which are allowed by natural and civil  
law1 should be forbidden by the  divine 
law1 owing to its great perfection1 and 
the superiority of its  rewards over any
 thing that human nature can bestow4 ,to
 the attainment  of which it is not     
unreasonable that virtues should be     
required1 far  exceeding the simple     
precepts of nature4 ,those kinds of     
correction that  leave neither any mark 
of infamy1 nor any permanent injury1 but
 are  suited to the age1 or other       
circumstances of the sufferer1 if       
inflicted  by those1 who derive such a  
permission from human laws1 for instance
  by parents1 guardians1 or masters1    
contain nothing repugnant to the        
precepts of the ,gospel1 as may be      
clearly understood from the nature of   
the thing itself4 ,for they are remedies
 to the mind no less harmless  than     
medicines ungrateful to the palate are  

to the body4 ,but as to  revenge the    
case is different4 ,for the infliction  
of punishment1 only  to gratify         
resentment1 so far from being           
conformable to the ,gospel1 has  been   
shewn above to be repugnant even to the 
law of nature4    ,the ,jewish law      
indeed not only forbids the cherishing  
of hatred against  a neighbour1 that is1
 one of the same country and people1 but
 requires  certain common acts of       
kindness to be bestowed even upon       
enemies of  that description4 ,the      
,gospel therefore1 comprehending all men
 under  the appellation of neighbour1   
not only forbids us to hurt our enemies1
  but commands us to do them good2 a    
commandment clearly stated in the       
,gospel of ,st4 ,matthew4 ,yet the law  
permitted the ,jews to seek revenge  for
 injuries of a more grievous kind1 not  
with their own hands1 but  by appealing 
to the judge4 ,but ,christ does not give
 us the same  permission1 as appears    
from that opposition which he makes     

between  the permissions of former      
times1 and those of his own law4 ,you   
have  heard that it was said an eye for 
an eye--but ,i say unto you1 love your  
enemies1 etc4    ,for although what     
follows relates peculiarly to the       
repelling of  injury1 and1 in some      
measure1 abridges this permission1 yet  
it passes  a much greater censure upon  
revenge1 rejecting it as an indulgence  
suitable only to a more imperfect1 and  
carnal state4    ,to inflict punishment 
by way of retaliation was disapproved of
 even by  those of the ,jews1 who were  
distinguished for their worth and       
wisdom2  because they regarded not only 
the ,,letter1 but the ,,purpose and     
,,spirit  of the law4 ,this appears from
 ,philo1 in whose writings we find the  
,jews of ,alexandria1 upon the calamity 
of ,flaccus1 their persecutor1          
addressing themselves to ,god in the    
following language1 ,we do not  rejoice1
 ,o ,lord1 in the calamity or punishment
 of an enemy1 being  taught by thy holy 

laws to feel for the miseries of men4   
,and in this  case we may apply that    
general command given by ,christ to     
forgive  all who have offended or       
injured us1 that is1 neither to do1 nor 
to  wish them evil1 through resentment  
of the evil they have done to us4  ,but 
what can be said of revenge1 not as     
regarding the past1 but as  providing   
security for the future8 ,here too      
,christ requires of his  followers the  
same disposition to pardon injuries1    
particularly1 if the  offender shews any
 probable signs of repentance4 ,luke    
xvii4 #c4 ,eph4  iv4 #cb4 ,col4 iii4    
#ac4 ,in those passages a full remission
 is intended1  such a remission as      
restores the offender to his former     
situation of  friendship or confidence3 
and consequently nothing can be required
 of  him under the name of punishment4  
,besides1 if there were no such marks   
of repentance1 the reparation of a loss 
is not to be pursued with too  much     
rigour2 a doctrine inferred from the    

precept of ,christ enjoining  us to give
 up the garment along with the cloak4   
,but if it is likely that connivance at 
an offence will be attended  with       
imminent inconvenience and even danger  
to ourselves1 we should be  contented   
with such securities as may be          
effectual1 and at the same  time operate
 with as little prejudice as possible to
 the offender4  ,for even among the     
,jews1 the law of retaliation was not in
 use1 as we  are informed by ,josephus1 
and other writers of that nation4 ,but  
in  addition to the expence incurred1   
which the law treats of as a separate   
point1 the injured party usually        
received a pecuniary fine instead of    
retaliation2 the repayment of expences  
being considered simply as a            
restitution1 and not a penalty4    ,it  
remains now to consider punishment1 as  
providing for the ,,public and  not     
,,individual security1 which is         
accomplished either by removing the     
guilty person out of the way or by      

restraining him from doing farther      
mischief1 or by deterring others through
 the severity of example1 none  of which
 means it has been clearly proved were  
abolished by ,christ2 for  in giving his
 precepts he affirmed that he destroyed 
no part of the  law4 ,the law of ,moses 
indeed1 which in these respects was to  
remain  in force as long as the ,jewish 
,polity existed1 strictly enjoined      
magistrates to punish murder and other  
similar crimes4 ,but if the  precepts of
 ,christ could exist in conjunction with
 the law of ,moses1  as far as it       
imposed capital punishments1 surely they
 may exist in  conjunction with human   
laws1 which in this respect are but an  
imitation  of the divine laws4    ,,xi4 
,some1 in support of an opposite        
opinion1 allege the supreme mercy  of   
,god1 as it is displayed in the new     
covenant1 and which is given as  an     
example for men1 and for magistrates1 in
 particular1 to follow1  who1 in the    
exercise of authority1 execute the laws 

of the ,deity4 ,this  opinion may in    
some measure be true1 but not to that   
extent1 which the  authors of it intend4
 ,for the great mercy of ,god displayed 
in the new  covenant has a peculiar     
reference to offences against the       
primitive  law1 or even against the law 
of ,moses1 before the time that men had 
received a knowledge of the ,gospel4    
,for offences committed after the       
promulgation of the ,gospel1 especially 
if they are accompanied with a  hardened
 obstinacy1 are treated with much       
severer judgments than any  that were   
declared by ,moses4 ,for ,god punishes  
sins of that kind not  only in a future 
state1 but in the present life4 ,but for
 sins of that  kind1 to obtain the act  
of mercy and indulgence1 the offender   
must  inflict punishment upon himself1  
not in a slight or trivial manner1 but  
with a heartfelt sorrow1 and resolution 
to sin no more4    ,in the same manner  
it is maintained that if men are        
actuated by  repentance1 they are       

,,entitled to impunity4 ,we do not say  
that men are  never actuated by sincere 
repentance2 but it is not every kind of 
avowal or acknowledgment1 by which ,god 
is moved to remit the ,,whole of  a     
punishment1 as appears from the case of 
,david4 ,as the supreme judge  therefore
 might dispense with the full penalty of
 the law1 inflicting  death1 and yet    
exercise no inconsiderable severity upon
 offenders1 so  now he may dispense with
 the sentence of eternal death1 at the  
same  time leaving the sinner to find an
 early grave by the stroke of some      
calamity1 or by the hand of human       
justice4    ,,xii4 and ,,xiii4 ,another 
objection made against capital          
punishments is  that such a kind of     
sentence and execution is cutting off a 
criminal  from all possibility of       
repentance4 ,but those1 who make the    
objection1  must know1 that in cases of 
that kind1 venerable and upright judges 
use the greatest precautions1 and suffer
 no one to be hurried away to           

execution1 without a reasonable time    
allowed for reflection and deep         
abhorrence of his crime3 a repentance1  
which though prevented by the           
interposing hand of death from producing
 the fruits of righteousness1  we have  
reason to suppose1 from the case of the 
thief pardoned on the  cross1 may be    
accepted with ,god4    ,but if on the   
other hand it be said that longer life  
might have been of  more avail to       
serious repentance1 we may observe that1
 in some cases1  the reply of ,seneca   
may be made1 that to men of that        
description death  is often the greatest
 blessing which can be bestowed2 for1 in
 the words  of ,eusebius1 their career  
of wickedness cannot otherwise be       
shortened1  or reformed4 ,these in      
addition to the preceding arguments in  
the former  part of this treatise may be
 deemed a sufficient answer to those1   
who  assert that all capital            
punishments1 and even all punishments1  
without  exception1 are abolished by the

 precepts of our ,saviour4 ,the         
,apostle1  consigning to the office of  
kings the use of the sword1 as an       
exercise  of his divine commission to   
avenge all wrongs1 instructs us to pray 
for  kings1 that1 as true ,christians1  
in their royal capacity1 they may be a  
protection to the innocent4 ,an end1    
which even after the introduction  of   
the gospel1 could not easily be         
obtained1 owing to the depravity of     
mankind1 if the violence of some were   
not restrained by the exemplary         
punishment of others4 ,such authority is
 the more necessary1 when even  in the  
midst of so many examples and           
punishments1 the lives of the  innocent 
are scarcely secure4 ,there have been   
indeed1 it cannot be  denied1 happy     
instances where the sentence of death   
was changed for  that of perpetual      
labour1 a practice1 as we are informed  
by ,diodorus1  followed by ,sabacon1    
king of ,egypt1 a prince renowned for   
his piety4  ,balsamon observes that the 

penal laws of ,rome1 inflicting death1  
were  most of them changed by the       
,christian emperors of later times1 and 
other kinds of punishment were          
substituted1 that the guilty might      
receive deeper impressions of           
repentance1 and their punishment operate
  as a more durable example4    ,,xiv4  
,from what has been said1 it may be     
inferred1 how unsafe it is for  a       
private ,christian1 whether from motives
 of personal interest1 or from  those of
 the public good1 to take upon himself  
the punishment of an  offender1 and     
particularly to inflict death4          
,although1 as it has been  said before1 
it may1 ,,in ,,some ,,cases1 be allowed 
by the law of nations4 ,a  permission1  
that has given rise to the laudable     
practice1 prevailing in  some countries 
of furnishing adventurers with public   
instructions and  commissions to chase  
and capture pirates1 wherever they may  
be found4  ,but those adventurers may be
 considered as discharging a public duty

  rather than as acting upon their own  
authority4    ,,xv4 ,a custom not unlike
 to which prevails in many places1 of   
not  allowing individuals to bring      
criminal charges against others at their
  own pleasure3 that office belonging to
 persons invested with public  authority
 to undertake it4 ,so that no one can   
contribute towards  shedding the blood  
of another1 but as an act of necessary  
duty4 ,in  reference to this custom1 a  
canon of the council of ,eliberis       
excluded  from the communion any        
believer who had been instrumental in   
causing  the proscription or death of   
another4    ,,xviii4#ed ,it is proper   
now to consider whether all wicked acts 
are of  that kind1 which are punishable 
by human laws4 ,in reply to which we    
may answer that they certainly are      
not4--,in the first place1 mere acts  of
 the mind1 or criminal intentions1      
though by subsequent confession1  or    
some other accident1 they may come to   
the knowledge of others1 are  not       

punishable by human laws4 ,because1 as  
it was proved in a former  part of this 
treatise1 it is not consonant to the law
 of nature1 that  ,,intentions ,,only   
should give rise to any right1 or       
obligation amongst  men4 ,and in this   
sense the maxim of the ,roman law is to 
be taken1 ,,that  ,,no ,,one ,,deserves 
,,punishment ,,for ,,mere ,,thoughts4   
,yet this does not prevent  intentions1 
when they have an influence upon the    
conduct1 from being  considered as      
actual deeds1 and equally deserving of  
punishment4    ,,xix4 ,in the second    
place1 even outward acts1 cannot be     
punished by men  where they arise       
through some inevitable infirmity of    
human nature4 ,for  although there can  
be no sin1 except where there is a      
freedom of will1  yet to be at all times
 free from all infirmity and sin1 is    
more than  can be expected from the     
condition of man4 ,so that ,sopater1    
,hierocles  and ,seneca among the       
,philosophers2 ,philo among the ,jews2  

,thucydides  among the historians2 and  
innumerable writers among ,christians   
have  maintained that sin is interwoven 
with our very nature4 ,nay indeed1 a    
doubt may be entertained whether such   
acts can rightly and properly  be called
 sins4 ,for though seeming to be        
voluntary actions1 they will  be found1 
when minutely considered1 not to proceed
 from a free and  deliberate exercise of
 the will4 ,laws1 says ,plutarch in the 
life of  ,solon1 should be framed to    
suit possible cases1 the legislator may 
obtain every beneficial end by punishing
 a few offenders1 where the             
indiscriminate punishment of multitudes 
would be attended with no good  effect4 
,there are some actions1 which though   
not imputable to human nature  itself1  
are inevitable consequences of the      
influence of bodily habits  on the mind4
 ,actions like these are punishable in  
human courts1 owing  to the criminality 
of voluntary contracting1 or of not     
sufficiently  guarding against1 those   

habits4    ,,xx4 ,in the third place1   
human courts of justice cannot take     
cognizance  of those offences1 which    
neither directly nor indirectly1 affect 
the  public or individuals4 ,for no     
reason can be assigned1 why such        
offences  should not be left to the     
judgments of ,god1 whose all-seeing eye 
must  know them1 whose equity will weigh
 them1 and whose power can punish  them4
 ,it would be unnecessary therefore1 and
 presumptuous in human  tribunals to    
assume such decisions4 ,however we must 
except from this  rule those corrective 
kinds of punishment1 designed for the   
reformation  of offenders1 even where   
their conduct is no way injurious to    
others4    ,neither are those actions   
punishable1 which are directly opposite 
to  the virtues of compassion1          
liberality1 or gratitude1 in the        
performance  of which virtues natural   
justice allows of no compulsion4        
,,xxi4 ,the point1 necessarily to be    
considered next1 is the opinion1        

whether it is lawful some times to grant
 pardon4 ,for the ,stoics  maintain it  
not to be lawful1 as may be seen from a 
fragment in  ,stobaeus1 under the title 
of ,,magistracy1 from ,cicero's speech  
for  ,murena1 and towards the conclusion
 of ,seneca's books on ,clemency2 but   
their arguments are fallacious1 and     
unsubstantial4 ,they say that  pardon is
 the remission of a penalty1 that       
,,ought to be paid2 but a wise  man does
 every thing1 which he ,,ought to do4   
,here the fallacy lies in  the use of   
the word ,,ought4 ,for if it means that 
an offender owes a  penalty1 that is1   
that he may be punished without         
injustice1 it will  not necessarily     
follow that the person who does not     
punish him1 is  doing what he ought not 
to do4 ,but if the word be taken to     
imply that  a good man1 or a wise man1  
ought at all events1 to exact the       
penalty1  it may be observed in reply   
that ,,this does not always happen1 and 
therefore1 in this sense1 the penalty or

 punishment may be considered1  not as a
 debt1 but only a permission4 ,and this 
will hold good1 both  before and after  
the establishment of penal laws4        
,,xxii4 ,before the establishment of    
penal laws1 punishment1 beyond  all     
doubt1 might be inflicted2 because by   
the law of nature1 every  offender made 
himself subject to punishment2 but it is
 not a natural  and inevitable          
consequence of its being lawful1 that it
 should be  enforced4 ,for this depends 
upon the connection between the ends1   
for  which punishments were established1
 and the punishments themselves4 ,if    
the ends proposed therefore are not     
immediately necessary1 in a moral  point
 of view1 or if other ends of a         
different kind1 but not less wise  and  
salutary should be devised1 or that the 
ends originally designed  may be        
obtained by some other means1 in all    
these cases1 the right of  punishment   
may be saved1 there being no immediate  
occasion to inflict  it4 ,thus for      

instance1 where an offence is known to  
very few1 there can  be no immediate    
occasion for a public punishment1 by way
 of exemplary  exposure1 which in some  
cases might be even injurious to society
 rather  than productive of advantage4  
,upon which ,cicero in a letter to his  
brother makes a pertinent remark1       
respecting one ,zeuxis1 observing1  that
 had he once been brought into court1 he
 could not have been  released1 but     
there was no necessity that a search    
should be made for  him1 in order to    
bring him to trial4--,in the next place 
the right and  end of punishment may be 
dispensed with1 where a man's own       
services1 or  those of his family are   
sufficient to outweigh the consideration
 of his  offences4 ,for1 in the words of
 ,seneca1 an act of kindness eclipses   
the fault of an injury4--,and in the    
last place1 where reproof operates  upon
 an offender1 as a means of correction  
and amendment1 or where the  injured    
party is satisfied with an              

acknowledgment of the offence1 the      
occasion for punishment is done away4   
,it was this motive to clemency1  which 
the son of ,david had in view1 where he 
observes that it behoves  the righteous 
to be merciful4 ,for as all punishment1 
especially of the  more severe cast1 has
 in it some thing1 which tho' not       
repugnant to  justice1 is at variance1  
at least1 with charity1 reason easily   
suffers  us to forbear inflicting it1   
unless that forbearance is opposed by   
some  weightier1 juster1 and more       
undeniable motive of charity4           
,,xxiii4 ,cases may occur where it is   
absolutely necessary to inflict         
punishment1 as upon notorious1 and      
atrocious criminals1 or where it  is for
 the public good1 to dispense with that 
severity1 or where  the judicial        
authorities may use their own discretion
 in mitigating  or enforcing the        
sentence of the law4 ,upon which ,seneca
 pertinently  remarks1 that the exercise
 of lenity should always be an act of   

free  deliberation4 ,as to the disputes 
of the ,stoics on these points1 they    
are1 in the opinion of ,cicero and      
others1 debates upon words rather  than 
things3 consequently they are less      
worthy of philosophical  contemplation4 
,,xxiv4 ,there seems to be a greater    
difficulty in deciding what is to  be   
done1 subsequently to the establishment 
of penal laws2 because a  legislator is 
bound1 in some measure1 by his own laws4
 ,but this1 as it  was proved in a      
former part of this treatise1 is only   
true with respect  to the legislator1 in
 his individual capacity1 as a private  
member of  the state1 but not in his    
public character1 in which he represents
  the whole ,majesty and ,authority of  
the state itself4 ,as such1 he can      
entirely repeal the law3 for it is the  
nature of all human laws1 to  depend    
upon the will of the maker1 not only for
 their origin1 but also  for their      
duration4 ,yet a lawgiver ought not1    
upon trivial grounds1 to  repeal a      

statute1 for1 in so doing he would be   
acting against the rules  of sovereign  
justice4 ,but as the legislator has     
power to repeal the  whole of a law1 so 
in the case of some particular person1  
or individual  action1 he may relax its 
rigour1 allowing it to remain in other  
respects1 as it stood before4 ,as an    
example of this1 the actions of  the    
,deity may be cited1 who1 according to  
the testimony of ,lactantius1  in       
enacting his laws1 did not deprive      
himself of the exercise of his  mercy1  
to grant pardons4 ,the ,emperor1 says   
,augustin1 may recall  his sentence1    
pardon and release a criminal2 because1 
as he further  explains it1 the person  
who has power to make laws1 is not      
,,invariably  bound to observe them4    
,yet this privilege of departing from   
the letter  must never be used but for  
the most important reasons4 ,although   
such  reasons cannot be precisely       
defined1 yet it is certain that1 since  
the  establishment of civil law1 more   

weighty ones are required to authorise  
such pardons1 than before that period4  
,because punishments have derived  an   
additional sanction from the authority  
of the law1 which ought to be  respected
 and observed4    ,,xxv4 ,the reasons   
for releasing any one from the penalties
 of the law1  are of two kinds1 either  
internal or external4    ,an internal   
reason1 to justify a departure from the 
sentence of the  law1 must be one1 where
 the punishment is severe when compared 
with the  offence4    ,,xxvi4 ,an       
external reason is one arising from some
 favourable  circumstance in the        
character of the offender1 or some fair 
hopes that  may be entertained of his   
future conduct4 ,and these reasons will 
have  the most weight in cases1 where   
the particular motives for making the   
law cease to operate4 ,for although a   
general reason1 unopposed by any  other 
of a weightier kind1 may sufficiently   
authorise the enaction of  a law2 yet   
where the peculiar reason1 for which    

that law was made1 has  ceased to exist1
 the relaxation of it1 or even a total  
dispensation  will be attended with less
 danger to the universal authority of   
law in  general4    ,such a dispensation
 indeed is most allowable1 where an     
offence has been  committed through     
ignorance1 though the party so          
committing it is not  entirely free from
 blame1 or through some invincible      
infirmity of mind1  in all which cases1 
a ,christian ruler will have an eye to  
the example  of ,god1 who1 under the old
 covenant1 appointed many such offences 
to be atoned for by certain expiatory   
offerings3 ,levit4 iv4 and v43  and1 in 
the ,new ,testament1 he has expressly   
declared his intention to  pardon such  
offences1 upon due repentance4 ,luke    
xxiii4 #cd42 ,heb4 iv4  #ae4 and v4 #b42
 #a ,tim4 #a4 #ac4 ,and ,chrysostom     
observes1 that ,theodosius1  impressed  
with those words of our ,saviour1       
,father1 forgive them1 for  they know   
not what they do1 was led to grant a    

pardon to the people of  ,antioch4      
,,xxvii4 ,and hence it is evident1 how  
mistaken ,ferdinand ,vasquez is  in his 
judgment1 when he maintains that there  
can be no just reason  for dispensing   
with a law1 that is1 for releasing any  
one from  its obligations1 except where 
the lawgiver1 upon being consulted1     
expressly declares that he never        
intended it should be observed to  its  
full extent4 ,for he does not make the  
proper distinction between  an equitable
 interpretation1 and the entire         
relaxation of a law4 ,for  which reason1
 in another place1 he reproves ,thomas1 
and ,sotus1 because  they say that a law
 is binding although the particular     
reason of its  being made may have      
ceased1 as if they supposed that the    
mere letter of  the law was the source  
of its obligation1 an opinion which they
 never  did entertain4 ,so far from     
every relaxation coming under the idea  
of  equity1 properly so called2 those   
relaxations may be freely granted  or   

refused1 which could not be done in     
matters of equity1 to which  even acts  
of charity or those of reasonable policy
 do not strictly  belong4 ,for there is 
a great difference between the repeal of
 a law  upon fair or urgent grounds1 and
 a legislator's declaring that at the   
time of passing the law he had not the  
particular offence or case in           
contemplation4    ,having thus far      
considered the nature of dispensations1 
we proceed to a  review of the merits   
upon which they may be granted4         
,,xxviii4 ,from what has been said      
above1 it appears that in punishments1  
two things are to be regarded1 the      
offence1 and the object for which  they 
are inflicted4 ,it is consonant to      
justice that no one should  receive     
greater punishment than he deserves2    
upon which ,cicero1 in  one of his      
letters1 observes1 that1 the same       
moderation1 which is  commended in all  
other things1 ought to be observed in   
punishments4  ,papinian therefore calls 

punishment an estimation of demerit2 but
 this  equality established between     
crime and punishment1 says ,demosthenes 
in  his ,letter in behalf of the        
children of ,lycurgus1 is not the only  
thing  to be considered3 the object and 
intention also of the delinquent must   
be weighed and taken into the account4  
,but1 if care be taken to inflict  no   
more punishment than is due for an      
offence2 it may be greater or  less1 in 
proportion to the utility to be derived 
from thence4    ,,xxix4 ,in examining   
the different degrees of guilt1 we ought
 to take  into the account the motives  
which impelled the offender to commit   
the  act--the motives1 which ought to   
have restrained him therefrom1 and how  
far he was capable of yielding to       
either4 ,scarce any one does a wicked   
action without some motive1 or so far   
strips himself of the nature of  man1 as
 to delight in such acts from pure      
malignity4 ,most men are led  away by   
the indulgence of their appetites1 which

 engender sin4 ,under  the name of      
appetite also may be comprehended the   
strong desire of  avoiding evil1 which  
is the most consonant to nature1 and    
therefore to  be reckoned amongst the   
most laudable of all desires4 ,so that  
offences  committed for the sake of     
avoiding death1 imprisonment1 pain1 or  
extreme want are generally deemed the   
most excusable4    ,which gave occasion 
to ,demosthenes to say1 that we are     
justly more  exasperated against those1 
who1 abounding in riches1 commit evil   
actions1 than against those1 who are    
impelled by want to do the same4        
,humane judges are always ready to make 
allowance for necessity3 but  where     
wealth is united with injustice1 no     
pretext can be pleaded in  excuse4 ,on  
this score1 ,polybius excuses the       
,acarnanians1 for having  neglected1    
when threatened with impending danger   
themselves1 to fulfil  the terms of a   
defensive treaty made with the ,greeks  
against the  ,aetolians4    ,besides the

 desire of avoiding evil there are other
 desires tending  to some good1 either  
real or imaginary4 ,real advantages1    
considered  apart from virtues1 and     
those actions1 which have a virtuous    
tendency1  are either such as give      
delight themselves1 or1 like abundance  
of  riches1 can procure those things1   
which administer to pleasure4 ,among    
advantages purely imaginary1 we may     
reckon that of desiring to excel        
others1 from a spirit of rivalry1 rather
 than from any laudable  intention1 or  
the power of gratifying resentments1    
which the farther  they deviate from    
natural justice the more shocking they  
are to natural  feeling4 ,these         
appetites the ,apostle has described in 
terms of marked  censure1 calling them1 
the lust of the flesh1 the lust of the  
eye1 the  pride of life4 ,here the first
 member of the sentence expresses the   
love of pleasure1 the second implies the
 insatiable love of riches1  and the    
third comprehends the pursuit of vain   

glory1 and the desire of  revenge4      
,,xxx4 ,the very injustice of all       
offences ought to be a ,,general motive 
with men1 to restrain them from the     
commission of them4 ,for at present  we 
are not considering sins of any kind1   
but those1 which extend  their          
consequences beyond the offender        
himself1 and affect others4  ,and       
injustice is the more heinous and       
criminal in proportion to the  greatness
 of the injury1 which it inflicts4      
,in the highest rank of crimes and      
misdemeanours therefore1 we may  place  
those1 which are carried into complete  
execution3 and lower in  the scale we   
find those criminal designs1 which have 
proceeded some  degrees1 but not to the 
last stage of completion4 ,for the      
aggravation  of a criminal intent is    
measured by the length to which it goes4
 ,in  either class that kind of         
injustice is most notorious1 which tends
 to  disturb the common peace of        
society1 and therefore is injurious to  

greater numbers4 ,private wrongs follow 
in the next degree4 ,the greatest  of   
which are those affecting life1 and very
 great1 though somewhat  inferior in the
 degrees of enormity1 are those1 that   
disturb the peace  of families1 which is
 founded on the marriage-contract4 ,and 
the last  description of wrongs are     
those affecting the property of         
individuals1  either by taking it with  
open violence1 or obtaining or injuring 
it by  fraudulent means4    ,some are of
 opinion that a more accurate order of  
division might have  been used2 but that
 which is here followed is the same used
 by ,god  himself in the delivery of his
 commandments4 ,for under the name of   
parents are included not only those1 who
 are naturally such1 but  sovereign     
princes1 magistrates1 and rulers of     
every description1 whose  authority is  
the key-stone of the fabric of society4 
,next follows the  prohibition of       
murder2 the prohibition of adultery1 as 
a violation of  the marriage bond2 the  

prohibition of theft1 and false         
evidence3 and  the catalogue of offences
 concludes with the prohibition of      
criminal  desires4 ,among the immediate 
causes to restrain the commission of a  
crime1 not only the cruelty of the act  
itself1 but all the remote and  possible
 consequences should be taken into the  
account4 ,if a fire is  begun1 or the   
barriers1 that keep out the waves1 are  
broken down1 the  perpetrator brings    
upon his own head the blood of          
thousands1 and all  the guilt of that   
ruin by which they perish4    ,in       
addition to the general characters of   
injustice above described1 we  may annex
 the crime of being undutiful to        
parents1 unkind to relatives1  or       
ungrateful to benefactors1 which are    
each of them a violation of  natural1   
and in some respects of civil law4 ,the 
repetition of these  offences too       
aggravates their enormity3 because      
wicked habits are  sometimes worse than 
wicked actions4 ,hence we may comprehend

 the  natural justice of that rule1     
which the ,persians followed1 comparing 
the past life of an offender with his   
present transgression4 ,and this  ought 
to have some weight in cases where a    
crime does not originate  from habit1   
but from a momentary occasion4 ,but not 
so1 where a course  of former rectitude 
has been changed into an unvaried course
 of  wickedness4 ,for in such cases1    
,god himself has declared by the mouth  
of his prophet ,ezekiel1 that he has no 
regard to the former life4  ,even       
profane writers have the same clear     
views upon the subject2 for  ,thucydides
 observes1 that degeneracy from a       
righteous to a wicked  course incurs    
double punishment3 for offences are     
least pardonable in  those1 who know the
 difference between right and wrong4 ,in
 this respect  all praise and admiration
 are due to the wisdom of the primitive 
,christians1 who1 in estimating the     
magnitude of offences1 weighed  the     
preceding and the subsequent conduct of 

a transgressor against  the action1 for 
which he was to be punished1 as may be  
seen from the  council of ,ancyra1 and  
other councils4 ,it heightens the       
enormity of an  offence1 where it is    
committed in violation of an express    
prohibition  of the law4 ,for1 in the   
language of ,tacitus1 the fear of       
prohibition  may sometimes operate as a 
restraint1 but where men once act in    
defiance of that1 fear and shame have   
lost all their force4    ,,xxxi4 ,the   
capacity of the person too1 with respect
 to judgment1  disposition1 age1        
education1 and every other circumstance 
must be taken  into consideration1 when 
we look for resistance1 or submission to
 the  suggestions of wicked             
inclinations4 ,the thought of immediate 
danger  augments fear1 and recent1      
unallayed pain inflames anger2 so that  
in  either case the calm dictates of    
reason cannot be heard4 ,offences       
therefore springing from the influence  
of such impressions1 are of a  less     

odious complexion than those arising    
from the love of pleasure1  or the      
indulgence of hatred4 ,because there is 
less excuse for actions  of the latter  
kind1 the delay1 or total forbearance of
 which could  occasion no serious       
inconvenience4 ,for it must always be   
kept in  mind1 that where there are more
 powerful impediments to the exercise   
of judgment1 and more urgent persuasives
 to natural feeling1 the  criminality of
 an offence is proportionably softened4 
,and these are the  rules for measuring 
the degrees of pardon or punishment4    
,,xxxii4 ,the ,pythagoreans maintain    
that justice lies in proportioning  the 
punishment to the offence3 a rule which 
cannot be admitted to  the full extent  
of requiring an aggressor to suffer     
nothing more  than a bare requital of   
the injury he has occasioned4 ,for this 
is at  variance with the most perfect   
laws1 which in cases of theft sometimes 
require fourfold1 and sometimes fivefold
 restitution to be made4 ,and  the      

,athenian law1 besides compelling a     
thief to pay double the value  of what  
he had taken sentenced him to many days'
 imprisonment4 ,among  the ,indians1 as 
we are informed by ,strabo1 the person1 
who had maimed  another1 was condemned1 
in addition to the penalty of           
retaliation1 to  lose his hand4 ,nor is 
it right1 as ,philo1 in explaining the  
punishment  of murder1 justly observes1 
for the suffering of an innocent and    
guilty  person to be exactly the same4  
,and hence it is easy to see why certain
  crimes not carried into actual        
execution1 and therefore less injurious 
than those1 which are so1 are punished  
only proportionably to the  design4--,in
 this manner false witnesses were       
treated by the ,jewish law2  and by the 
,roman law1 those who walked ready armed
 to commit murder4  ,consequently a     
greater degree of punishment is due1    
where the criminal  intention is        
completed4 ,but as death is the severest
 punishment that  can be inflicted1 and 

one that can never be repeated2 the     
sentence of  all human law rests there3 
though by the custom of some countries  
death  is accompanied with torture1 in  
cases of extreme atrocity4    ,,xxxiii4 
,in many instances1 the magnitude of a  
punishment can only be  measured by the 
situation of the person on whom it is to
 be inflicted4  ,thus a fine imposed    
upon the poor would be a heavy sentence1
 though  it would scarcely affect the   
rich2 and a man of high rank would feel 
the weight of a disgrace1 that would but
 lightly touch an ignoble  person4 ,such
 distinctions are frequently used by the
 ,roman law1 often  degenerating into   
acts of partiality2 a fault from which  
the law of  ,moses is entirely free4    
,and the above rules may be considered  
as the  scale for estimating the        
different degrees of punishment4        
,,xxxiv4 ,though punishment does not    
exceed the bounds of justice1 yet in    
certain cases it may be mitigated in    
favour of a criminal1 from motives  of  

mercy1 except where such lenity to the  
guilty is deemed cruelty to  the        
innocent1 whose safety is thereby       
endangered4 ,for the escape of a        
criminal is often an encouragement to   
his own perseverance in iniquity1  and  
to that of others1 who are encouraged by
 the example4 ,necessity  indeed        
requires the sharpest remedies for the  
suppression of crimes2  especially1     
where the incentives of habit and a     
facility to commit them  prevail4       
,,xxxv4 ,the divine law given to the    
,hebrews punished the stealing of       
cattle from a pasture with more severity
 than breaking into a house1  on account
 of the ease with which the former of   
those crimes might  be committed4 ,exod4
 xxii4 #a-i4 ,justin in speaking of the 
,scythians1  describes them as punishing
 theft with more severity than any other
  crime2 for as they have no covered    
habitations to protect their flocks1    
and herds from depredations1 what could 
be safe1 if thieving were  allowed8     

,though the ,,familiarity of certain    
crimes may prevent us from  being       
surprised at their perpetration1 it by  
no means diminishes their  atrocity1 or 
demands a mitigation of punishment4     
,but1 as ,saturninus  says1 the         
giant-strides of crimes must be impeded 
with the strongest  bands4 ,in trials   
for offences1 clemency may be indulged1 
but in the  passing of laws severity    
should be regarded3 ,for the ,,general  
nature  of law requires that offences   
should be pursued with rigour3 but in   
trials1 in which individuals are the    
objects concerned1 there may be         
circumstances to aggravate or diminish  
the offence3 which leaves room  for the 
discretionary exercise of rigour or     
lenity4    ,,xxxvi4 and ,,xxxvii4 ,the  
inclination to mitigate penalties1 where
  the urgent motives to enforce them no 
longer exist1 is a point of  compassion 
perfectly distinct from the abolition of
 punishment  altogether4    ,nor has any
 thing been omitted1 that might tend to 

clear up this  difficult and delicate   
question4 ,but every point1 we trust1   
has been  examined in its proper place1 
either respecting the magnitude of      
crimes1 as measured by the injury done1 
the habitual commission of such         
offences1 or the influence of the       
motives1 sufficient to encourage or     
restrain them4 ,indeed the character of 
the offender affords the most           
conclusive means for judging of his     
capacity to commit the crime2 and  that 
of the sufferer often contributes       
something towards enabling us  to       
estimate the due proportion of the      
penalty4 ,the circumstances of  the     
time1 when--the place1 where--or the    
facility1 with which a crime  is        
perpetrated1 tend to aggravate1 or      
lessen its enormity4 ,the length  of    
time intervening between a criminal     
design and its execution gives  us some 
opportunity to examine how far the      
perpetrator was actuated  by a malicious
 purpose4 ,but the true complexion of a 

crime is to be  discovered1 partly from 
the nature of those appetites1 to which 
it  owes its birth2 and partly1 on the  
other hand1 from the nature of the      
motives which ought to have restrained  
them4 ,by this class of appetites  the  
magnitude of a crime may be judged of2  
and the consequences are the  motives   
which should operate to restrain them4  
,,xxxviii4 ,it has been shewn before1   
and it is a truth founded upon          
historical fact1 that wars are          
undertaken1 as acts of punishment1 and  
this motive1 added to that of redress   
for injuries1 is the source1 from  which
 the duties of nations1 relating to war1
 take their rise4 ,but it  is not every 
injury1 that can be construed into a    
just ground of war4  ,for laws1 whose   
vengeance is meant to protect the       
innocent1 and to fall  upon the guilty1 
do not regard every case1 as a          
sufficient warrant for  their exertion4 
,so that there is much truth in the     
opinion of ,sopater1  who says that     

there are trivial and common offences1  
which it is better  to pass over        
unnoticed1 than to punish4    ,,xxxix4  
,the maxim laid down by ,cato1 in his   
speech in defence of the  ,rhodians1    
that it is not right any one should be  
punished upon the  bare suspicion of his
 having intended to commit aggression or
 injury1  was well applied in that      
place2 because no positive decree of the
  people of ,rhodes could be alleged    
against them1 nor was there any other   
proof beyond the ,,conjecture of their  
wavering in their policy4 ,but this     
maxim is not universally true4    ,for  
where intention has proceeded to any    
outward and visible signs of  insatiable
 ambition and injustice1 it is deemed a 
proper object of  jealousy1 and even of 
punishment4 ,upon this principle1 the   
,romans1 as  may be seen from ,livy's   
account in the xlii4 book and xxx4      
chapter of  his history1 thought        
themselves justified in declaring war   
against  ,perseus1 ,king of ,macedon1   

unless he gave satisfactory proof1 that 
he  had no hostile intentions against   
them1 in the naval and military         
armaments1 which he was preparing4 ,and 
we are informed by the same  historians1
 that the ,rhodians urged it as a rule  
established by the  laws and customs of 
all civilized states2 that if any one   
wished the  destruction of an enemy1 he 
could not punish him with death1 unless 
he  had actually done something to      
deserve it4    ,but it is not every     
unjust design1 though indicated by some 
outward  act1 which can authorize and   
direct hostilities4 ,for if the actual  
commission of crimes and aggressions is1
 in some cases1 proper to be            
overlooked1 much more will it be a mark 
of deliberate caution to use  the same  
forbearance1 where nothing further than 
the pure design of  aggression appears4 
,a forbearance which ,cicero justifies  
upon the  possibility that the enemy may
 have repented of his design1 before the
  execution of it4 ,no conclusive       

inference can be drawn from the severity
  of ,mosaic ,law against all intended  
acts of impiety and murder4 ,for1 in    
comparing human laws with the divine    
counsels1 whose depths we cannot  sound1
 we are liable to run into error2 and   
the impulse of anger1  where it is      
attended with no fatal consequence1 is a
 case in which the  infirmity of human  
nature calls for pardon4 ,for altho' the
 precepts of  the decalogue are designed
 to lay a restraint upon unlawful       
desires  as well as upon unlawful       
actions1 yet in addition to the         
spiritual  sense1 that which is called  
the carnal1 or external commandment     
applies  to those dispositions that are 
manifested by some open act4 ,this      
interpretation may be deduced from a    
passage in the gospel of ,st4 ,mark1  c4
 x4 #ai1 where the prohibition to       
defraud is immediately preceded by  the 
injunction not to steal4 ,so that       
intended aggressions are not to be      
punished by force of arms1 except in    

cases of atrocity1 where the very       
design threatens consequences of the    
greatest danger4 ,all punishment        
therefore must have in view either      
security against future aggressions1    
reparation for the injury done to       
national or private honour1 or it  must 
be used as an example of awful severity4
    ,,xl4 ,it is proper also to observe 
that kings and those who are possessed  
of sovereign power have a right to exact
 punishment not only for  injuries      
affecting immediately themselves or     
their own subjects1 but  for gross      
violations of the law of nature and of  
nations1 done to other  states and      
subjects4 ,for the liberty of inflicting
 punishment for the  peace and welfare  
of society1 which belonged to           
individuals in the  early ages of the   
world1 was converted into the judicial  
authority of  sovereign states and      
princes2 a right devolving upon them not
 only  as rulers of others1 but as      
subject to the controul of no earthly   

power4 ,for that is a right1 which can  
belong to no subject4 ,it is  never safe
 to leave the entire assertion of a     
man's own rights1 or  the punishment of 
his wrongs1 to his own judgment2 for he 
cannot be  entirely disinterested in his
 own cause4 ,partiality will make him   
fall  short of1 or prejudice will make  
him exceed the bounds of justice4 ,it   
was the theme of praise bestowed upon   
the heroes of antiquity1 that  in their 
most arduous undertakings they avenged  
the wrongs of others  rather than their 
own4 ,upon this principle there can be  
no hesitation  in pronouncing all wars  
to be just1 that are made upon pirates1 
general  robbers1 and enemies of the    
human race4 ,so far this opinion agrees 
with that of ,innocentius and others1   
who maintain all war to be lawful       
against those who have renounced the    
ties and law of nature4 ,an opinion     
directly the reverse is held by         
,victoria1 ,vasquez1 ,azorius1 ,molina1 
and others1 who deem an aggression done 

to a prince1 his government1  or his    
subjects1 or civil jurisdiction over the
 aggressor1 the only  justifiable       
warrant for inflicting punishment1      
particularly the  punishment of         
hostilities4 ,for they suppose          
punishment to be an effect  purely      
arising from the authority of civil law1
 whereas1 according to  the proofs      
established in the beginning of this    
treatise1 it was shewn  to be a right   
resulting entirely from the law of      
nature4    ,if the opinion of those1    
from whom we differ1 be admitted1 no    
enemy  will have a right to punish      
another1 by the prosecution of a just   
war2  a right1 which notwithstanding is 
allowed and confirmed by the practice   
of all nations1 not only after the      
defeat of an enemy1 but during the      
continuance of a war2 and that too1 not 
from any civil jurisdiction1  but from a
 natural right1 which prevailed long    
before the foundation of  states1 and   
which still exists in all its force1 in 

places1 where the  community consists of
 families distinct1 and united as the   
subjects of  one sovereign4    ,,xli41  
,,xlii41 ,,xliii4 ,but certain          
precautions are necessary to prevent  us
 from being carried away by an opinion  
that civil customs1 though  founded upon
 just reasons1 and received among many  
nations1 are to be  reckoned as a part  
of the law of nature4 ,and in the next  
place1 it is  necessary to guard against
 enumerating as prohibitions of natural 
law1  things which are not proved to be 
so1 as certain kinds of marriages the   
taking of interest for the use of money1
 and other positive injunctions  of the 
divine1 or ,mosaic law4 ,the third rule 
is1 to make an accurate  distinction    
between general principles1 such as the 
duty of living  according to the        
dictates of reason1 and those of a more 
particular  though not less obvious     
meaning2 as the duty of forbearing to   
take what  belongs to another4 ,to which
 many truths may be added though not    

quite  so easy of apprehension3 among   
which may be named the cruelty of that  
kind of punishment1 which consists in   
revenge1 delighting in the pain  of     
another4 ,this is a method of proof     
similar to that which occurs in         
mathematics1 the process of which rises 
from self-evident truths to             
demonstrations1 the latter of which1    
though not intelligible to all  alike1  
upon due examination obtain assent4     
,as then in matters of civil law1       
ignorance is deemed an excuse1 so with  
respect to the law of nature1 wherever  
infirmity of understanding forms  an    
invincible obstruction to the knowledge 
of its rules1 such infirmity  may be    
alleged as a vindication4 ,for as1 in   
cases of unavoidable  ignorance a great 
degree of the guilt of sin is removed2  
so it is in  some measure softened      
wherever this ignorance subsists1 though
 it may  be owing to former negligence4 
,and for this reason1 ,aristotle        
compares  barbarians1 in their rude1    

unformed state1 to persons1 whose       
appetites  are rendered sickly by       
disease4 ,plutarch also observes that   
there are  certain infirmities and      
disorders1 which naturally infect the   
soul4  ,once for all1 by way of         
conclusion we may add that wars         
undertaken  to inflict punishment may be
 suspected of injustice1 except there be
  manifest and enormous aggressions1    
with other conspiring causes1 to        
vindicate nations for having recourse to
 arms4    ,,xliv4 ,the progress of the  
work has necessarily led to the         
consideration  of offences against ,god2
 the propriety or impropriety of        
punishing  which by force of arms is a  
fit subject of inquiry4    ,admitting   
the affirmative part of the question1 we
 may observe that as  in ecclesiastical 
affairs ,bishops are intrusted with a   
,catholic1 or  general power2 so kings1 
besides the care of their own immediate 
states  and subjects1 may be regarded as
 protectors of the human race4 ,the best

  argument1 on the negative side of the 
question1 against the justice of  such  
wars1 is the sufficiency of the divine  
omnipotence to avenge its  own wrongs4  
,yet the same may be said of other      
offences4 ,for the ,deity  possesses    
sufficient power to punish them1        
although he leaves them  to the sentence
 of human tribunals4 ,some will urge and
 maintain that  other kinds of offences 
are punished only in cases1 where others
 are  uninjured or endangered by the    
commission of them4 ,on the other hand1 
it may be said that men punish not only 
offences1 which directly hurt  others1  
but even those1 which affect them       
indirectly1 as suicide and  other       
similar crimes4    ,although religion is
 a concern between the soul of man and  
his  ,maker alone1 its influence on     
human morals is of no inconsiderable    
importance4 ,so that ,plato had reason  
to call it the bulwark of  authority and
 law1 and the bond of every thing       
venerable in social  order and          

discipline4 ,every false opinion in     
divine things1 says  ,plutarch1 is      
pernicious1 betraying itself in the     
disorders of the  imagination1 wherever 
it takes root1 and springs up into      
action4 ,so  that ,aristotle reckons the
 care and support of religion the first 
of  public concerns4 ,this is a truth   
applying not to any particular state1   
but to all governments1 and to human    
society in every shape4 ,an avowal      
which ,xenophon makes the characteristic
 of a great and wise prince1            
attributing to ,cyrus a declaration of  
his firm persuasion that the more  his  
subjects feared ,god1 the more obedient 
he should find them to his  laws1 and   
the more attached to his person4 ,but   
once remove the motives  of religion1   
says ,tully1 and you destroy faith1 the 
intercourse  between man and man1 and   
justice the most excellent of all       
virtues4    ,the opinions of ,epicurus  
afford a sufficient proof of this3 for  
in  banishing the providence of ,god    

from his system1 he made justice        
nothing but an empty name1 springing    
from human conventions1 founded on      
self-interest1 and restraining men from 
the commission of crimes by no  other   
principle but that of fear4    ,but     
there is a wider sphere1 than the       
internal welfare of independent  states1
 on which religion operates4 ,in the    
separate society1 which  every kingdom1 
state1 or country forms within itself1  
the place of  religion may occasionally 
be supplied by the influence and        
execution  of municipal laws4 ,but in   
all the transactions of the great       
community  at large1 where civil laws   
are silent1 and tribunals give way to   
the  decision of the sword1 the law of  
nature and of nations1 founded upon  the
 fear of ,god1 and obedience to his     
will1 is the standard of right  to which
 ,kings and ,sovereign states appeal2 a 
violation of which is  regarded as a    
violation of the divine law4    ,,xlv4  
,but to take a closer view of the       

subject1 we must observe that  true     
religion1 which is the same at all      
periods of time1 rests upon  four       
evident and universally acknowledged    
truths4 ,the first of which  is the     
being and unity of ,god1--the second1   
that ,god is not any of  the things1    
that can be seen1 but of a nature too   
sublime to be the  object of human      
conception1 or of human sight1--the     
third is1 that with  the eye of his     
providence he regards the events of this
 world1 and  regulates them with the    
most equitable and unerring             
judgments1--the  fourth is1 that he is  
the creator of all things1 except       
himself4 ,and  these four truths are    
unfolded and laid down in an equal      
number of  commandments1 the first of   
which plainly declares the unity of     
,god--the  second forbids any           
representation1 by painting or image1 to
 be made of  that being1 who is         
invisible to mortal eye4 ,tacitus bears 
testimony to  the spiritual nature of   

the ,jewish religion3 for he says1 that 
the  ,jews have nothing but a mental    
conception of one ,god1 and they look   
upon every attempt to represent him     
under the appearance of human form1  as 
a profanation of his heavenly           
nature4--,from the third commandment  we
 deduce his knowledge of all human      
transactions1 even of our very          
thoughts2 an omniscience upon which the 
obligation and sanctity of  oaths is    
founded4 ,for ,god is a witness even of 
the secret designs  of the heart1 so    
that every solemn oath is an appeal to  
his justice  and his power1 for the     
vindication of truth1 and the punishment
 of  falsehood4--,the fourth commandment
 presents us with an account of the     
creation of the world1 to commemorate   
which ,god appointed the sabbath1       
commanding it to be observed with a     
degree of reverence above every  other  
sacred institution4 ,for the violation  
of any other rites1 such  as those      
respecting forbidden meats1 was left to 

the discretionary  punishment of the    
law3 but offences against the sabbath   
were capital2  because1 considering the 
nature and design of its origin1 such   
contempt  implied a disbelief1 that the 
world was created by ,god4 ,now the     
creation of the world by ,god affords a 
tacit proof of his goodness1  wisdom1   
eternity and power3 and the effect of   
this contemplative  knowledge is the    
offering of honour1 love1 worship and   
obedience to  ,god4 ,so that ,aristotle 
says that the man1 who denies that ,god 
ought to  be honoured1 or parents loved1
 should be taught to renounce his error1
  not by reasoning1 but by punishment4  
,and1 in another place1 he observes     
that some actions are proper on certain 
occasions1 but reverence for  the       
majesty of ,god is requisite at all     
times1 and in all places4    ,the truth 
of those contemplative opinions may     
undoubtedly be proved  from the nature  
of things2 the clearest of which proofs 
is the evidence  of sense1 shewing the  

existence of things1 which naturally    
leads us to  consider the time1 when    
they had no being4    ,but as all are   
not able to understand these arguments  
and others of  the same kind1 it is     
sufficient to observe that in all ages  
and all  countries of the world1 with   
very few exceptions1 these opinions have
  found a general reception with those  
who were too plain in their  dealings1  
and ingenuous in their designs1 to      
impose upon others1 and  with many1 who 
had too much sagacity to be deceived    
themselves4 ,but  when amid such variety
 of laws1 customs1 and opinions1 there  
is so  general an agreement upon one    
point2 that agreement may be adduced as 
a proof1 that such a belief owes its    
origin to the primitive ages of  the    
world1 from whence it has been derived  
to us3 when we consider too  that it has
 never been clearly refuted1 it is a    
sufficient reason to  establish our     
faith4    ,,xlvi4 ,there is no excuse   
therefore for the rejection of those    

opinions1  even in cases1 where there is
 no intuitive sagacity to discover new  
proofs1 or to comprehend old ones3 as   
there are so many guides both in  nature
 and reason to lead men to the knowledge
 of those truths1 and  as no solid      
arguments have ever been produced to    
establish a contrary  belief4 ,but as   
human punishments form the subject of   
our present  inquiry1 it is right to    
make a distinction between opinions     
themselves1  and the manner of deviating
 from them4 ,the belief in a supreme    
being1  and in the controul of his      
providence over human affairs1 is one of
  those universal tenets to be found in 
all religions1 whether true or  false4  
,and in reality to deny the being of a  
,god1 and to deny the  interposal of his
 providence in human affairs1 amounts in
 its moral  consequences to the same    
thing4 ,and it is for this reason these 
two  opinions have been inseparably     
united in all ages1 and among every     
civilized people4 ,consequently we find1

 that in all well governed  states1     
wholesome laws have been enacted to     
restrain those1 who disturb  those      
opinions1 which have always been        
regarded as the chief support  of social
 order2 and all contempt1 shewn to those
 opinions1 has  always been considered  
as contempt shewn to society itself1    
which it  consequently has a right to   
punish4    ,,xlvii4 ,there are other    
truths not equally self-evident1 such as
 these1  that there are not more ,gods  
than one2 that no visible thing1 neither
  the world1 nor the heavens1 nor the   
sun1 nor the air is ,god2 that the      
world1 and the matter of which it is    
formed1 have not existed from  all      
eternity1 but were made by ,god4 ,so    
that we see the knowledge of  these     
truths disfigured1 and almost entirely  
obliterated among many  nations by the  
lapse of time4 ,and this might the more 
easily happen1  as there were no legal  
provisions made to preserve the purity  
of  these truths1 which were not        

considered as essential to the very     
existence of all religion4 ,the law     
indeed given to that people1 who  were  
instructed in the clear knowledge of    
these truths1 by the mouths  of the     
prophets1 by miracles seen with their   
own eyes1 or brought to  their ears by  
the reports of the most undoubted       
testimony1 that law1  though it         
expresses the greatest abhorrence of the
 worship of false  gods1 does not       
inflict the punishment of death upon all
 convicted of  that crime1 but only in  
particular instances1 where they have   
seduced  others into idolatry1--or where
 a state has introduced the worship  of 
unknown ,gods1--or where the true       
worship of ,god1 and obedience to  his  
laws have been forsaken for the worship 
of the stars1 which ,st4  ,paul calls   
serving the creature above the creator1 
an offence1 which  was1 for some time1  
punished among the descendants of ,esau4
 ,those  too who offered their children 
to ,moloch1 that is1 to ,saturn1 were   

punished with death4 ,yet the           
,canaanites1 and the neighbouring       
nations1  who had long been sunk into   
the most depraved superstitions1 were   
not  consigned by ,god to immediate     
punishment1 but were left to fill up the
  measure of their crimes4 ,and there   
were other nations1 where1 in the       
language of ,scripture1 ,god winked at  
the times of this ignorance4 ,where  men
 have had no means of arriving at the   
knowledge of a true ,god1 as  their     
superstitions and errors are excusable1 
so where1 in despite of  knowledge1 they
 have deified ,daemons1 and vices1 which
 they knew to be  such1 their           
superstitions are not to be called      
errors1 but impieties4  ,and no less    
impious is the supposed homage1 that is 
paid to ,god with  the blood of innocent
 human victims1 and ,darius king of the 
,persians1  and ,gelo king of ,syracuse1
 are commended for abstaining from such 
practices4 ,plutarch informs us of some 
barbarians1 who would have been         

punished by the ,romans for offering    
human victims to the deity1 had  they   
not pleaded the antiquity of the custom1
 which was admitted as  an excuse1      
though they were strictly enjoined not  
to follow the same  custom in future4   
,,xlviii4 ,from the kind of evidence on 
which ,christianity rests1 it  is plain 
that no force should be used with       
nations to promote its  acceptance4 ,it 
is not merely by natural arguments it   
can gain assent2  for it has made an    
addition of many things to natural      
religion4 ,its  evidence rests upon the 
history of ,christ's resurrection1 and  
upon  the miracles performed by himself 
and his ,apostles4 ,so that it is a     
matter of fact proved by the most       
undeniable evidence1 and of great       
antiquity4 ,therefore a doctrine of this
 kind cannot be thoroughly  received    
upon the first hearing of it1 without   
the secret assistance  of ,god3 an      
assistance not given as a reward for the
 merit of works2 so  that wherever it is

 withheld or less copiously bestowed2 it
 is done for  reasons1 which though     
just1 are generally unknown to us1 and  
therefore  not punishable by human      
judgments4 ,for it is the custom in the 
sacred  writings to assign the divine   
pleasure as the cause of things unknown 
to us4    ,there is another reason of no
 less weight1 which is that ,christ     
being the author of a new law1 will have
 no one brought to embrace  his doctrine
 by the fear of human punishments4 ,nor 
is the reason  at all weakened by the   
objection drawn from the parable of the 
marriage-supper1 where it is said the   
messengers are commanded to  compel the 
guests to come in4 ,for the term1       
,,compel1 here signifies  nothing more  
than an earnest entreaty1 a sense1 in   
which it is used in  other parts of the 
,new ,testament1 implying an earnest    
request made to  any one4    ,,xlix4    
,but to obstruct the teachers of        
,christianity by pains and  penalties is
 undoubtedly contrary to natural law and

 reason3 for  the doctrine of ,christ1  
apart from all the corruptions added by 
the  inventions of men1 contains nothing
 hurtful1 but every thing beneficial  to
 society4 ,the thing speaks for itself1 
and even those who were  strangers to   
the doctrine itself were obliged to     
acknowledge the truth  of this4 ,pliny  
says that the ,christians bound         
themselves by an oath to  commit neither
 theft1 nor robbery1 nor to violate     
their word4 ,it was a  common saying    
,caius ,seius is a good man1 but he is a
 ,christian4    ,nor indeed can any     
danger be apprehended from the spreading
 of  doctrines1 calculated to inspire   
greater sanctity of manners1 and the    
purest principles of obedience to lawful
 sovereigns4 ,philo has recorded  a     
beautiful saying of ,augustus1 who      
observed that the assemblies of the     
,jews were not ,bacchanalian revels1 or 
meetings to disturb the public  peace1  
but schools of virtue4    ,l4 ,it seems 
unjust to persecute with punishments    

those who receive  the law of ,christ as
 true1 but entertain doubts or errors on
 some  external points1 taking them in  
an ambiguous meaning or different from  
the ancient ,christians in their        
explanation of them4 ,a point which is  
proved by what has been said above1 and 
by the ancient example of the  ,jews4   
,for1 possessing a law1 which allowed   
them to inflict temporal  punishments1  
they never exercised that authority upon
 the ,sadducees1  who denied the        
doctrine of a resurrection3 a doctrine  
of the greatest  truth1 though but      
faintly delivered in that law1 and under
 a typical  application of words and    
circumstances4    ,but if there should  
be any weighty error1 that discerning   
judges could  easily refute by an appeal
 to sacred authority1 or to the opinions
  of antiquity2 here too it would be    
necessary to make allowance for         
ingrafted opinions1 that have grown up  
to form an inseparable part of  the     
human mind1 and for the zealous         

attachment of every one to his own      
tenets2 an evil which ,galen says is    
more difficult to be eradicated  than   
any constitutional disease4             
,,chapter ,,xxi4    ,,on ,,the          
,,communication ,,of ,,punishment4      
,how accessories are liable to          
punishment--,sovereign ,princes or      
,states answerable for the misconduct of
 their subjects1 when they      know it1
 and do not endeavour to prevent        
it--,sovereigns bound not      to       
protect offending subjects1 but to      
deliver them up or punish               
them--,the rights of suppliants belong  
to the unfortunate and not      to the  
guilty--,suppliants may be protected    
while the inquiry      into their case  
is still pending--,how far states are   
amenable to      punishment--,all the   
different exceptions stated--,children  
not      answerable for the offences of 
parents--,the moral government of       
,god in this respect                    
considered--,individuals not answerable 

for      offences1 to which they have   
not given consent--,heirs1 how far      
answerable for the acts of their        
ancestors4      ,i4 ,the next topic of  
inquiry relates to the communication of 
punishment1 as inflicted upon           
accomplices1 who1 in that capacity1     
cannot be said to be punished for the   
guilt of others1 but for their  own4    
,and from what has been said above upon 
the loss sustained from  injury1 it may 
be understood who are the persons1 that 
come under this  description4 ,for the  
partnership in loss1 and the partnership
 in guilt  are regulated by nearly the  
same principles4 ,yet the obligation to 
repair a loss does not always imply     
guilt1 except where there has been  any 
notorious malice1 in which case every   
damage renders the party1  who has      
occasioned it1 liable to make           
reparation4 ,so that persons  ordering  
the commission of any wicked or hostile 
act1 giving the  requisite consent to   
it1 supplying the aggressor with        

assistance1 or  protection1 or1 in any  
other shape1 partaking of the crime1 by 
giving  counsel1 commendation1 or assent
 to his act1 or when they have power to 
forbid the commission of such an act1 by
 forbearing to exercise their           
authority1 or by refusing to afford the 
succour1 which they are bound  by the   
law of nature1 or by treaty to give to  
the injured party1 by not  using with   
the offender that power of dissuasion1  
which they have a  right to do1 or      
lastly by concealing what they ought to 
make known1 in  all these cases1 such   
persons are punishable as accomplices1  
if they  are convicted of that degree of
 malice1 which constitutes a crime1 and 
merits punishment3 points which have    
before been discussed4    ,,ii4 ,the    
case will be made clearer by examples4  
,a civil community is  no more bound    
than any other society by an act of     
individual members1  except that act be 
done by its express consent and         
authority1 or it has  neglected to      

disavow such a proceeding4 ,hence it is 
formally stipulated  in almost all      
treaties that no acts or aggressions are
 to be ascribed  to a state1 except     
those1 which are done in the name of the
 sovereign1  and by persons acting      
expressly under the authority of his    
commission4  ,so a father is not        
answerable for the misconduct of his    
children1 a  master for that of his     
servants1 nor a ruler for the acts of   
those  under him1 unless there appears  
in any of these some connivance1 or     
encouragement in promoting that         
misconduct1 or those acts4    ,in the   
case of a sovereign's responsibility for
 the acts of his  subjects1 there are   
two things to be considered1 which      
require minute  inquiry1 and mature     
deliberation1 and those are the         
forbearance1  and the encouragement or  
protection1 which he has shewn to their 
transgressions4    ,as to forbearance1  
it is an acknowledged point1 that when  
he knows of  a delinquency1 which he    

neither forbids nor punishes1 when he is
 both  able and bound to do so1 he      
becomes an accessory to the guilt       
thereof4  ,cicero1 in his speech against
 ,piso1 says1 it makes no great         
difference  especially in a consul1     
whether he harasses the government by   
moving  ruinous laws1 and making        
mischievous speeches1 or suffers others 
to do  the same4 ,if a slave has        
committed a murder with the knowledge of
 his  master1 the master becomes        
answerable for the entire deed1 as it   
was  done with his concurrence4    ,but1
 as we have said before1 besides the    
knowledge of a deed1 to  constitute a   
participation in the guilt1 the person  
so knowing it1  must possess the power  
to prevent it4 ,and this is what is     
meant by the  legal phrase1 that the    
knowledge of a crime1 when it is ordered
 to  be punished1 is taken in the sense 
of forbearance or connivance1 and  it is
 supposed that the person1 who ought to 
have prevented it1 did  not do so4 ,in  

this place knowledge implies a          
concurrence of will1 and  connivance a  
concurrence of design4 ,a master        
therefore is not bound by  the act of a 
slave1 who has claimed his freedom1 and 
done any thing in  despite of his       
master1 because the knowledge of a crime
 without ability  to prevent it1 by     
disclosure or some other means1 cannot  
be construed  into an act of guilt4 ,so 
parents are bound by the acts of        
children2 but  only in cases where they 
have the children under their authority4
 ,on  the other hand1 altho' by having  
them in their power1 they might have    
prevented their misconduct1 they will   
not be answerable for it1 unless  they  
had a knowledge of it also4 ,for there  
ought to be a concurrence  of knowledge1
 and forbearance or encouragement to    
involve any one in  the guilt of        
another's actions2 circumstances all of 
which by a parity  of reasoning may be  
applied to the connection between       
sovereigns and  subjects3 a connection  

founded on principles both of natural   
and civil  law4    ,,iii4 ,the matter   
that necessarily comes next under       
consideration  is the case of those1 who
 screen delinquents from punishment4 ,it
  was before observed that1 according to
 the law of nature1 no one  could       
inflict punishment1 but a person        
entirely free from the guilt  of the    
crime which he was going to punish4 ,but
 since established  governments were    
formed1 it has been a settled rule1 to  
leave the  offences of individuals1     
which affect their own community1 to    
those  states themselves1 or to their   
rulers1 to punish or pardon them at     
their discretion4 ,but they have not the
 same plenary authority1 or  discretion1
 respecting offences1 which affect      
society at large1 and  which other      
independent states or their rulers have 
a right to punish1  in the same manner1 
as in every country popular actions are 
allowed for  certain misdemeanors4 ,much
 less is any state at liberty to pass   

over  in any of its subjects crimes     
affecting other independent states or   
sovereigns4 ,on which account any       
sovereign state or prince has a right   
to require another power to punish any  
of its subjects offending in the  above 
named respect3 a right essential to the 
dignity and security of  all            
governments4    ,,iv4 ,but as it is not 
usual for one state to allow the armed  
force  of another to enter her          
territories under the pretext of        
inflicting  punishment upon an offender1
 it is necessary that the power1 in     
whose kingdom an offender resides1      
should upon the complaint of the        
aggrieved party1 either punish him      
itself1 or deliver him up to the        
discretion of that party4 ,innumerable  
instances of such demands to  deliver up
 offenders occur both in sacred and     
profane history4 ,thus  the other       
,israelites required the ,benjamites to 
deliver up offenders1  ,jud4 xx4--,and  
the ,philistines demanded of the        

,hebrews the surrender of  ,samson1 as a
 criminal1 ,jud4 xv4--,in the same      
manner the ,gauls made a  demand that   
the ,fabii should be surrendered for    
having fought against  them4 ,sylla too1
 as ,sallust informs us1 urged ,bocchus 
to deliver  up ,jugurtha1 and by so     
doing to relieve the ,romans from the   
bitter  necessity of implicating ,,him  
for his erroneous conduct in the same   
guilt with that most desperate villain4 
,yet all these instances are to  be     
understood not as strictly binding a    
people or ,sovereign ,prince to  the    
actual surrender of offenders1 but      
allowing them the alternative of  either
 punishing or delivering them up4 ,for  
it was upon this ground1  as we are     
informed1 that the ,eleans made war upon
 the ,lacedaemonians1  because the      
latter neglected to punish their        
subjects1 who had  committed aggressions
 upon that people2 that is1 they had    
neither  punished nor delivered them up3
 for the obligation may be taken either 

way1 that being left to the choice of   
the aggrieved person1 or nation1  in    
order to make the satisfaction the more 
complete4    ,the surrender here meant  
is nothing more than delivering up a    
citizen  or subject to the power of     
another state to decide upon his        
punishment4  ,but this permission       
neither gives nor takes away any right1 
it only  removes an impediment to the   
prosecution of a right4 ,wherefore if   
that  other people make no use of the   
permitted right1 the offender1 who  has 
been delivered up1 is in such a         
situation1 that he either ,,may or  may 
,,not be punished3 either of which may  
happen in the case of many  offences4   
,but the right of a state1 as to the    
enjoyment of its own  laws1 and many    
other advantages1 is not lost by any    
particular act  without a formal decree 
and judgment1 unless in any way it has  
been  previously enacted1 that certain  
acts1 or certain omissions1 shall       
amount to a forfeiture of some          

particular rights and privileges4 ,in   
the same manner1 goods1 if surrendered1 
but not accepted1 will remain  the      
property of the former owner4 ,but if   
the surrender of a citizen  has been    
accepted1 and1 by some accident1 the    
person so surrendered  shall afterwards 
return home1 he will no longer be a     
citizen1 except  by some new act of     
grace4 ,what has been said of punishing 
or giving up  aggressors1 applies not   
only to those1 who always have been     
subjects  of the sovereign1 in whose    
dominions they are now found1 but to    
those  also1 who1 after the commission  
of a crime1 have fled to some place for 
refuge4    ,v4 ,nor do the so much      
talked of rights of suppliants1 and the 
inviolable nature of asylums at all     
weaken the argument that has been       
advanced4 ,for the advantages of such   
protection are designed only for  those1
 who are the victims of unmerited       
persecution1 not for those  who have    
committed crimes injurious to mankind1  

and destructive to  society4 ,gylippus1 
the ,lacedaemonian1 as may be seen in   
the xiii4 book  of ,diodorus ,siculus1  
speaking of the rights of suppliants1   
says1 that  they were originally        
introduced1 as measures of compassion to
 the  unfortunate1 and not a screen for 
malicious and wanton offenders1 who     
have nothing but punishment to expect4  
,and a little after he says1 when  such 
men1 prompted by malice1 or rapacity    
have plunged into evils1 they  have no  
right to talk of misfortune or to wear  
the name of suppliants4  ,for that is a 
privilege granted by the laws of nature 
to the innocent1  who are beaten down by
 the hard and oppressive strokes of ill 
fortune4  ,but the refuge of compassion 
is withheld1 where every line of a life 
has been marked with cruelty and        
injustice4 ,thus according to that law1 
which partakes of the wisdom of its     
divine author1 asylums were open  to    
those who had killed any one by a weapon
 escaping from their hand3  slaves too  

were allowed places of refuge1 but      
deliberate murderers1  or those1 who had
 disturbed the peaceful order of the    
state1 found no  protection even from   
the altar of ,god4 ,philo1 in explaining
 this law  says1 that even the temple   
affords no refuge to the impious4       
,the more ancient of the ,greeks acted  
upon the same principle4 ,it  is said   
that the ,chalcidians refused to deliver
 up ,nauplius to the  ,grecians1 and the
 reason alleged was his having cleared  
himself of  the charges made against    
him4 ,there was among the ,athenians an 
altar  dedicated to ,mercy2 it is       
mentioned by ,cicero1 ,pausanias1       
,servius1 and  also by ,theophilus1 and 
it is described at full length by       
,statius in  the xii4 book of his       
,thebais4 ,the poet explains to what    
description of  men it afforded shelter3
 it was1 he says1 to those who were     
driven from  their homes by the calamity
 of war1 or stripped of their kingdoms  
by  usurpers4 ,tacitus in the third book

 of his ,annals1 and #fjth chapter1     
reprobates the custom1 prevailing in his
 time among the cities of  ,greece1 of  
making it an act of religion to protect 
offenders from the  punishment due to   
their crimes4 ,such offenders therefore 
ought either  to be punished1 or        
delivered up1 or1 at least1 ordered to  
withdraw4  ,perseus the ,macedonian     
king1 clearing himself to ,martius from 
the  charge of screening those1 who had 
attempted the life of ,eumenes2  said1  
as soon as ,i was apprised by you of    
their being in ,macedonia1 ,i  ordered  
immediate search to be made for them1   
peremptorily commanding  their perpetual
 banishment from my kingdom4    ,the    
right of demanding the surrender or     
punishment of criminals that  have fled 
into other kingdoms1 has1 in most parts 
of ,europe1 during  the present1 and the
 immediately preceding centuries1 been  
generally  exercised in cases1 where the
 crimes were such as affected the safety
  of the state1 or were attended with   

notorious atrocity4 ,it has been  usual 
to pass over1 with mutual connivance1   
crimes of an inferior kind1  except     
where it has been agreed to the contrary
 by express treaty4 ,nor  can it be     
concealed that where robbers and pirates
 have gained a truly  formidable power1 
it has often been deemed an act of      
humane policy both  in ,sovereign       
,princes1 and ,states to exercise       
forbearance towards them1  rather than  
to drive them to greater acts of        
desperation by treating  them with all  
the rigour1 which they deserve4    ,,vi4
 ,if the act1 of which refugees and     
suppliants are accused1 is not          
prohibited by the law of nature or of   
nations1 the matter must be  decided by 
the civil law of the country1 from which
 they come4 ,this  was a received       
opinion in ancient times1 as we find    
from the language  of ,aeschylus1 in    
whose ,tragedy of the ,suppliants1 the  
,king of ,argos1  addressing a number of
 the daughters of ,danaus1 on their     

coming  from ,egypt1 says1 ,if the sons 
of ,egypt exercise controul over you1   
maintaining that they are authorised to 
do so by the law of the state1  as being
 the nearest allied by blood1 who can   
resist them8 ,it is for  you to prove   
that1 according to the laws of your     
country1 they have no  authority over   
you4    ,,vii4 and ,,viii4 ,it has often
 been a celebrated topic of discussion1 
whether a whole community can be        
punished for misconduct4 ,and this is   
the proper place for that inquiry4      
,it was shewn in a former part of this  
treatise1 that a body politic  though it
 may seem to vary by a succession of new
 members1 continues  the same1 as long  
as it retains its form4 ,in which case  
it seems liable  to punishment no less  
than individuals4 ,on the other hand    
bodies  politic seem to possess many    
privileges peculiar to themselves1 such 
as having a common treasury1 a common   
seal1 laws1 and other similar           
advantages4 ,but there are some         

distinctions1 which they particularly   
derive from the ,,individuals of which  
they are composed4 ,thus we say  that   
,universities are learned1 or ,garrisons
 brave1 according to the  number of     
learned or gallant men1 which they      
respectively contain4  ,merit is a      
distinction of this kind1 as being a    
gift of nature to  individuals1 or an   
individual acquirement1 which no public 
body1  ,,of ,,itself1 can have4 ,so that
 upon the death or departure of those   
meritorious individuals1 the degree of  
merit1 which any public society  derived
 from their presence1 must become       
extinct4 ,in the same manner1  the debt 
of punishment which is considered as    
arising from some act of  demerit1 must 
cease with the debt of the individual   
delinquents4    ,arrian is justly       
commended for censuring the vengeance   
retorted upon  the ,persians by         
,alexander1 at a time1 when those1 who  
had committed  the original aggressions 
on the ,greeks1 had long been laid in   

their  graves4 ,he passes a like        
sentence upon the burning of            
,persepolis1 as  a retaliation for what 
the ,persians had done at ,athens4 ,such
 acts of  retaliation1 after a lapse of 
years1 have been vindicated by some     
writers1 as an imitation of the slow1   
but unerring progress of divine         
justice4 ,but we must remember that the 
ways of ,god are not as our ways1  nor  
is the exercise of his justice to be    
measured by our counsels4 ,for  if      
descendents can claim no merit for the  
actions of their ,,forefathers1  neither
 is it right they should be punished for
 ,,their transgressions4  ,the          
consequences of merit indeed may be     
transmitted without injury1 and         
therefore without injustice2 but it is  
not so with punishments4    ,,ix4       
,having thus shewn that a communication 
of punishment is necessarily  connected 
with a participation in guilt1 it       
remains to consider  whether punishment 
can be extended to those1 who are no way

 concerned  in the crime4 ,in order to  
understand this clearly1 and to prevent 
the  mistakes that may arise from a     
similarity of expression1 where there   
is no similarity of facts1 it will be   
necessary to make use of some           
precautions4    ,x4 ,in the first place 
there is a difference between a loss    
,,directly  occasioned by any act1 and  
one resulting but ,,indirectly from it4 
,now it may be called a direct injury to
 deprive any one of what  peculiarly    
belongs to him as his right4 ,an        
indirect injury is that  which prevents 
any one from possessing what he         
otherwise would have  done1 by          
destroying the condition or means1 which
 gave him such a  right4 ,as an example1
 ,ulpian says1 if any one has opened a  
well in  his own ground1 by which the   
subterraneous streams of water1 that    
would have passed to the lands of       
another1 are cut off1 here no fault  is 
imputable to the person who has only    
exercised his own right4 ,and  in       

another place1 he says1 it makes a great
 difference1 whether any  one directly  
does an injury1 or is only indirectly   
and unintentionally  instrumental in    
preventing another from reaping         
advantages1 which he  would otherwise   
have enjoyed4 ,and it is absurd1 says   
,paulus1 another  legal authority1 for  
men to be called rich before they       
possess the  means of being so4 ,thus   
when the property of parents is         
forfeited1 it  is felt as an            
inconvenience by their children2 though 
it cannot be  considered as a direct    
punishment inflicted upon them1 because 
that  property would never have been    
theirs1 unless the parents had retained 
it to their last breath4 ,on which      
,alphenus has made a just observation1  
in saying1 that1 by the punishment of   
the father1 children lose that  which   
would have come to them from him1 but   
things1 which they do not  receive from 
him1 such as the gifts of nature1 or    
those derived from  any other quarter1  

remain untouched4 ,cicero relates that  
in this manner  the children of         
,themistocles were reduced to want1 nor 
does he think  it unjust that the       
children of ,lepidus should share the   
same fate4 ,and  he says that it is an  
ancient custom1 and the received usage  
of all  states1 the hardship of which   
nevertheless was greatly softened by the
  laws of ,rome at a later period4 ,thus
 when a whole people is implicated  in  
the misconduct of the majority1 which   
holds the representative  character of  
the state1 and consequently loses its   
civil liberties1  its fortifications1   
and other privileges1 the loss affects  
innocent  individuals1 but only in those
 things1 which they could not have      
enjoyed1 except as belonging to that    
community4    ,,xi4 ,besides1 we must   
observe1 that the offence of one man may
 sometimes  occasion inconvenience or   
loss to another1 and yet that offence   
may not  be considered as the immediate 
cause of the action1 which is grounded  

on the exercise of a right4 ,this may be
 explained by an example4 ,thus  if any 
one has engaged for another's debt1 he  
brings himself into  the dilemma named  
in the ancient proverb1 that being bound
 for any  one is the next stage to ruin2
 but it is a ,,man',s ,,own ,,promise1  
and  ,,not ,,another',s ,,having        
,,incurred ,a ,,debt1 that is the real  
cause of his  obligation4 ,for as a     
person1 who has given security for a    
purchaser1 is  not1 properly speaking1  
bound by the ,,purchase1 but by his own 
,,promise3  so if any one has engaged to
 be responsible for a delinquent1 it is 
his own ,,engagement1 and not the ,,act 
,,of ,,that ,,delinquent1 which creates 
his obligation4 ,and hence the          
inconvenience of that kind which any one
  incurs1 must be measured not by the   
delinquency of another1 but by his  own 
power to enter into any such voluntary  
engagement4 ,in consequence  of which no
 one can give surety to suffer death for
 another2 because no  one has such power

 over his own life1 as to take it away  
himself1 or  to be bound to forfeit it  
for another4 ,though the ancient ,greeks
 and  ,romans thought otherwise1 and    
therefore they maintained that a surety 
might be put to death for any one1 as   
may be seen in the well known  story of 
,damon and ,pythias1 and hostages were  
frequently punished in  this manner4    
,what has been said of life may be      
applied to the limbs also1 which no  man
 has a right to part with1 except for   
the preservation of the whole  body4    
,but if any one has engaged to suffer   
banishment1 to submit to a  pecuniary   
fine1 or any other means of satisfying  
justice1 any thing he  suffers on this  
account will not1 strictly speaking1 be 
considered as a  ,,personal punishment1 
but as the performance of an agreement4 
,something like this occurs in the      
right1 which any one possesses          
dependent on another's will1 both with  
respect to the right of  individuals to 
private property1 and to the more       

extensive right to  demesnes possessed  
by a state4 ,for if any one is deprived 
of such a  thing owing to another's     
fault1 here the executive power         
depriving that  person1 is not          
inflicting a punishment on ,,him1 but   
only exercising a  prior right4         
,,xii4 and ,,xiii4 ,having laid down    
these distinctions1 we may observe that 
it is impossible that an innocent person
 should suffer for another's  crime4    
,this does not proceed from the reasons 
given by ,paulus1 who  maintains that   
punishment is designed for the          
reformation of the  offender4 ,for it   
seems possible that an example may be   
made1 extending  beyond the person of   
the criminal himself1 when it affects1  
in its  consequences1 those1 who are    
nearly related to him4 ,so that it is   
not  for the sake of example only that  
punishment is inflicted1 but because    
the obligation thereto arises from the  
demerit of the offending party4  ,now   
every demerit must be of a personal     

nature1 as it proceeds from  a man's own
 will1 over which he is supposed to     
exercise a perfect  controul4    ,,xiv4 
,in the law given to the ,hebrews1 ,god 
threatens to avenge the  impiety of     
fathers upon their children4 ,but he has
 sovereign dominion  over our lives and 
substance1 as being his gift1 which he  
may take  away from any one1 whenever he
 pleases1 without assigning his reasons4
  ,therefore if he thinks proper to take
 away by a premature or violent  death  
the children of ,achan1 ,saul1 ,jeroboam
 or ,ahab1 he is exercising  over them  
the right of sovereignty1 as well as    
that of punishment2  imposing by that   
awful example the more severe penalty   
upon the  parents4 ,for if they survive 
their children1 which was what the      
divine  law had most in view1 and       
therefore did not extend these threats  
beyond  the time of great               
grand-children1 a period to which the   
age of man  might reach1 it is certain  
that parents would be severely punished 

by  such a sight1 the most afflicting of
 any they could witness4 ,or if they    
should not survive such an event1 to die
 under such an apprehension  would be a 
great calamity4    ,but it is proper to 
remark that examples like those are     
never employed  by ,god1 except against 
crimes affecting his divine ,majesty1 as
 false  worship1 perjury or sacrilege4  
,indeed those threats of divine         
vengeance  are not always enforced2     
especially where any extraordinary      
virtue  shines in the characters and    
conduct of the children3 as may be seen 
in  the xviii4 chapter of the prophesy  
of ,ezekiel4 ,plutarch has discussed    
this topic with great eloquence in his  
book on the remote vengeance of  ,god4  
,as the ,gospel so clearly unfolds the  
future punishments of the wicked1  all  
the threats contained in that new       
covenant terminate in the  persons of   
the offenders themselves4 ,but the ways 
of providence in  these respects are not
 the rule which men can follow4 ,for    

,god1 even  without any reference to    
crime1 is the sovereign lord and        
disposer of  human life1 a commission   
which man is only allowed to execute    
against  the perpetrators of certain    
crimes4 ,wherefore as that same divine  
law  forbids parents to be put to death 
for the offences of children1 so  it    
exempts children from the same          
punishment for the actions of their     
fathers3 a lenity which is greatly      
commended by ,josephus and ,philo4  ,the
 same commendation is bestowed by       
,isocrates upon the laws of ,egypt2  and
 by ,dionysius of ,halicarnassus upon   
those of ,rome4    ,,xv4 ,but if it is  
unjust in human laws to punish the      
misconduct of  parents in the persons of
 their children1 how much more severe   
was the  law of the ,persians and       
,macedonians extending the penalties for
 crimes  against the state to every     
branch of the offender's relatives1 in  
the  most remote degree1 a law          
surpassing all others in rigour8        

,,xvi4 ,,xvii4 and ,,xviii4 ,what has   
been said respecting the punishment  of 
children for the offences of their      
fathers or forefathers1 may be  applied 
to the relation subsisting between      
sovereigns and subjects4 ,for  it is a  
relation springing from the contract of 
society1 which makes  the sovereign the 
essential head1 life and soul of that   
body1 in which  his people form the     
members4 ,as the civil community        
therefore with its  sovereign or head   
forms but one body1 there can be no     
separation of  interests1 but what      
affects one part must be prejudicial or 
serviceable  to the whole4    ,,xix4    
,why should an heir1 it has been        
sometimes asked1 be bound by other      
debts of his ancestor1 and not feel the 
effects of his punishment for           
misconduct8 to which answer may be      
given1 that the heir represents  the    
person of the deceased not in his merits
 or demerits1 which are  purely         
personal1 but in his property2 an       

artificial mode of preserving  unbroken 
the chain of succession and descent4    
,,xx4 ,and hence it follows1 that if in 
addition to the demerit of an  offence1 
any new grounds of obligation should    
arise connected with the  punishment1   
they must be discharged not properly as 
a punishment1 but  as a debt4 ,thus the 
heir will be liable to pay the costs    
awarded by a  judgment after a contested
 suit1 which is considered in the light 
of a  contract4          ,,chapter      
,,xxii4    ,,on ,,the ,,unjust ,,causes 
,,of ,,war4      ,differences between   
real and colourable motives--,war       
atrocious      without either of these  
motives--,wars of plunder1 under the    
most plausible pretexts1 not            
justifiable--,causes apparently1        
but not really just--,unnecessary       
advantage--,desire of a better          
soil--,discovery of things belonging to 
others--,incapacity of the      original
 owners--,war not always justifiable    
under the pretext      of asserting     

liberty--,or of imposing a beneficial   
government      upon a people against   
their will--,emperor's pretensions to   
universal empire refuted--,pretensions  
of the ,church--,imperfect              
obligations--,difference between wars   
originally unjust and those             
afterwards becoming so4      ,i4 ,in a  
former part of this work1 where the     
justice of war was  discussed1 it was   
observed that some wars were founded    
upon real  motives and others only upon 
colourable pretexts4 ,this distinction  
was first noticed by ,polybius1 who     
calls the pretexts1   prophaseis1 and   
the real causes1  aitias4 ,thus         
,alexander made  war upon ,darius1 under
 the pretence of avenging the former    
wrongs done  by the ,persians to the    
,greeks4 ,but the real motive of that   
bold and  enterprising hero1 was the    
easy acquisition of wealth and dominion1
  which the expeditions of ,xenophon and
 ,agesilaus had opened to his view4     
,in the same manner1 a dispute about    

,saguntum furnished the  ,carthaginians 
with ,,colourable ,,motives for the     
second ,punic war1 but1  in ,,reality1  
they could not brook the indignity of   
having consented to  a treaty1 which the
 ,romans had extorted from them at an   
unfavourable  moment2 and more          
especially as their spirits were revived
 by their  recent successes in ,spain4  
,the real causes assigned by ,thucydides
  for the ,peloponnesian war1 were the  
jealousies entertained by the           
,lacedaemonians of the then growing     
power of the ,athenians1 though the     
quarrels of the ,corcyreans1 ,potidaens1
 and other secondary states were  made  
the ostensible reasons4    ,,ii4 ,there 
are some who have neither ostensible    
reasons1 nor just causes  to plead for  
their hostilities1 in which1 as ,tacitus
 says1 they engage  from the pure love  
of enterprise and danger4 ,a disposition
 to which  ,aristotle gives the name of 
ferocity4 ,and in the last book of his  
,nicomachean ,ethics1 he calls it a     

bloody cruelty to convert friends  into 
enemies1 whom you may slaughter4        
,,iii4 ,though most powers1 when        
engaging in war1 are desirous to colour 
over their real motives with justifiable
 pretexts1 yet some1 totally            
disregarding such methods of            
vindication1 seem able to give no better
  reason for their conduct1 than what is
 told by the ,roman ,lawyers of a       
robber1 who being asked1 what right he  
had to a thing1 which he had  seized1   
replied1 it was his own1 because he had 
taken it into his  possession8          
,aristotle in the third book of his     
,rhetoric1 speaking of  the promoters of
 war1 asks1 if it is not unjust for a   
neighbouring  people to be enslaved1 and
 if those promoters have no regard to   
the  rights of unoffending nations8     
,cicero1 in the first book of his       
,offices1 speaks in the same strain1 and
 calls the courage1 which is            
conspicuous in danger and enterprise1 if
 devoid of justice1 absolutely          

undeserving of the name of valour4 ,it  
should rather be considered as a  brutal
 fierceness outraging every principle of
 humanity4    ,,iv4 ,others make use of 
pretexts1 which though plausible at     
first sight1  will not bear the         
examination and test of moral rectitude1
 and1 when  stripped of their disguise1 
such pretexts will be found fraught with
  injustice4 ,in such hostilities1 says 
,livy1 it is not a trial of right1  but 
some object of secret and unruly        
ambition1 which acts as the chief       
spring4 ,most powers1 it is said by     
,plutarch1 employ the relative          
situations of peace and war1 as a       
current specie1 for the purchase of     
whatever they deem expedient4    ,by    
having before examined and established  
the principles of just and  necessary   
war1 we may form a better idea of what  
goes to constitute  the injustice of the
 same4 ,as the nature of things is best 
seen by  contrast1 and we judge of what 
is crooked by comparing it with what  is

 straight4 ,but for the sake of         
perspicuity1 it will be necessary to    
treat upon the leading points4    ,it   
was shewn above that apprehensions from 
a neighbouring power are  not a         
sufficient ground for war4 ,for to      
authorize hostilities as a  defensive   
measure1 they must arise from the       
necessity1 which just  apprehensions    
create2 apprehensions not only of the   
power1 but of the  intentions of a      
formidable state1 and such apprehensions
 as amount  to a moral certainty4 ,for  
which reason the opinion of those is by 
no  means to be approved of1 who lay    
down as a just ground of war1 the       
construction of fortifications in a     
neighbouring country1 with whom  there  
is no existing treaty to prohibit such  
constructions1 or the  securing of a    
strong hold1 which may at some future   
period prove a  means of annoyance4 ,for
 as a guard against such apprehensions1 
every  power may construct1 in its own  
territory1 strong works1 and other      

military securities of the same kind1   
without having recourse to actual  war4 
,one cannot but admire the character1   
which ,tacitus has drawn  of the        
,chauci1 a noble and high-spirited      
people of ,germany1 who1  he says1 were 
desirous of maintaining their greatness 
by justice1  rather than by acts of     
ungovernable rapacity and               
ambition--provoking  no wars1 invading  
no countries1 spoiling no neighbours to 
aggrandize  themselves1--yet1 when      
necessity prompted1 able to raise men   
with  arms in their hands at a moment's 
warning--a great population with a      
numerous breed of horses to form a well 
mounted cavalry--and1 with all  these   
advantages1 upholding their reputation  
in the midst of peace4    ,,vi4#ee ,nor 
can the advantage to be gained by a war 
be ever pleaded as  a motive of equal   
weight and justice with necessity4      
,,vii4 and ,,viii4 ,neither can the     
desire of emigrating to a more          
favourable soil and climate justify an  

attack upon a neighbouring  power4      
,this1 as we are informed by ,tacitus1  
was a frequent cause of war  among the  
ancient ,germans4    ,,ix4 ,there is no 
less injustice in setting up claims1    
under the pretence  of newly discovered 
titles1 to what belongs to another4     
,neither can the wickedness1 and        
impiety1 nor any other incapacity of    
the original owner justify such a claim4
 ,for the title and right by  discovery 
can apply only to countries and places1 
that have no owner4    ,x4 ,neither     
moral nor religious virtue1 nor any     
intellectual excellence  is requisite to
 form a good title to property4 ,only   
where a race of  men is so destitute of 
reason as to be incapable of exercising 
any act  of ownership1 they can hold no 
property1 nor will the law of charity   
require that they should have more than 
the necessaries of life4 ,for  the rules
 of the law of nations can only be      
applied to those1 who are  capable of   
political or commercial intercourse3 but

 not to a people  entirely destitute of 
reason1 though it is a matter of just   
doubt1  whether any such is to be found4
    ,it was an absurdity therefore in   
the ,greeks to suppose1 that difference 
of manners1 or inferiority of intellect 
made those1 whom they were  pleased to  
call barbarians1 their natural enemies4 
,but as to atrocious  crimes striking at
 the very root and existence of society1
 the  forfeiture of property ensuing    
from thence is a question of a different
  nature1 belonging to punishments1     
under the head of which it was          
discussed4    ,,xi4 ,but neither the    
independence of individuals1 nor that of
 states1  is a motive that can at all   
times justify recourse to arms1 as if   
all persons ,,indiscriminately had a    
natural right to do so4 ,for where      
liberty is said to be a natural right   
belonging to all men and states1  by    
that expression is understood a right of
 nature1 antecedent to every  human     
obligation or contract4 ,but in that    

case1 liberty is spoken of  in a        
negative sense1 and not by way of       
contrast to independence1 the  meaning  
of which is1 that no one is by the law  
of nature doomed to  servitude1 though  
he is not forbidden by that law to enter
 into such  a condition4 ,for in this   
sense no one can be called free1 if     
nature  leaves him not the privilege of 
chusing his own condition3 as ,albutius 
pertinently remarks1 the terms1 freedom 
and servitude are not founded  in the   
principles of nature1 but are names     
subsequently applied to men  according  
to the dispositions of fortune4 ,and    
,aristotle defines the  relations of    
master and servant to be the result of  
political and not  of natural           
appointment4 ,whenever therefore the    
condition of servitude1  either personal
 or political1 subsists1 from lawful    
causes1 men should  be contented with   
that state1 according to the injunction 
of the  ,apostle1 ,art thou called1     
being a servant1 let not that be an     

anxious  concern8    ,,xii4 ,and there  
is equal injustice in the desire of     
reducing1 by force  of arms1 any people 
to a state of servitude1 under the      
pretext of  its being the condition for 
which they are best qualified by nature4
  ,it does not follow that1 because any 
one is fitted for a particular          
condition1 another has a right to impose
 it upon him4 ,for every  reasonable    
creature ought to be left free in the   
choice of what may be  deemed useful or 
prejudicial to him1 provided another has
 no just right  to a controul over him4 
,the case of children has no connection 
with the question1 as they are          
necessarily under the discipline of     
others4    ,,xiii4 ,it would scarce have
 been necessary to refute the foolish   
opinion  of some1 who have ascribed to  
the ,roman ,emperors dominion over the  
most remote and unknown nations1 if     
,bartolus1 deemed a lawyer of the  first
 eminence1 had not pronounced it heresy 
to deny those pretensions4  ,this       

opinion has been built upon the ,roman  
,emperor's some times having  styled    
himself ,sovereign of the whole world2 a
 term which it was  not unusual for many
 people to apply to their own country4  
,thus in  the scriptures we find ,judea 
frequently called the whole inhabited   
earth2 therefore when the ,jews1 in     
their proverbial expression1 called     
,jerusalem the centre of the world1     
nothing more is to be implied than  that
 it was situated in the middle of       
,judea4    ,as to the argument in favor 
of universal dominion from its being so 
beneficial to mankind1 it may be        
observed that all its advantages are    
counterbalanced by still greater        
disadvantages4 ,for as a ship may be    
built too large to be conveniently      
managed1 so an empire may be too        
extensive in population and territory to
 be directed and governed  by one head4 
,but granting the expediency of         
universal empire1 that  expediency      
cannot give such a right1 as can be     

acquired only by treaty  or conquest4   
,there were many places formerly        
belonging to the ,roman  ,empire1 over  
which the ,emperor has at present no    
controul4 ,for war1  treaty1 or cession 
have made many changes1 by which the    
rights of  territory have passed to     
other states or sovereign princes1 and  
the  standards of different communities1
 whether kingdoms or commonwealths1  now
 wave in places1 which the ,roman ,eagle
 once overshadowed with his  wings4     
,these are losses and changes1 that have
 been experienced by  other powers no   
less than that1 which was once mistress 
of the world4    ,,xiv4 ,but there have 
been some1 who have asserted the rights 
of the  church over unknown parts of the
 world1 though the ,apostle ,paul       
himself has expressly said that         
,christians were not to judge those  who
 were without the pale of their own     
community4 ,and though the  right of    
judging1 which belonged to the          
,apostles1 might in some  cases apply to

 worldly concerns1 yet in its general   
nature it was of  a celestial rather    
than an earthly kind--a judgment not    
exercised  by fire and sword1 but by the
 word of ,god1 proposed to all men and  
adapted to their peculiar               
circumstances--a judgment exercised by  
displaying or withholding the seals of  
divine grace1 as it might be  most      
expedient--lastly1 it was a judgment    
exercised in supernatural  punishments2 
in punishments proceeding from ,god1    
like the punishments  of ,ananias1      
,elymas1 ,hymenaeus1 and others4        
,christ himself1 the spring1 from whence
 all the power of the church was        
derived1 and whose life is the model for
 the church to follow1 said1  his       
kingdom was not of this world1 that is1 
was not of the same nature1  with other 
kingdoms1 otherwise1 like the rest of   
sovereigns1 he would  have maintained   
his authority by the power of the sword4
 ,for if he had  pleased to call up the 
aid of ,legions2 he would have called up

 hosts of  ,angels and not of men4 ,and 
every exercise of his right was         
performed  by the influence of divine1  
and not of human power2 even when he    
drove  the sellers out of the temple4   
,for the ,,rod was the ,,emblem and not 
the  ,,instrument of divine wrath1 as   
,,unction was once a ,,sign of healing1 
and  not the ,,healing ,,power ,,itself4
 ,st4 ,augustin on the xviii ,chapter of
  ,st4 ,john1 and #cf ver4 invites      
,sovereign ,princes into this kingdom1  
in  these terms1 ,hear1 ,o ,jews1 and   
,gentiles1 hear1 ,o earthly ,sovereigns1
 ,i  will not obstruct your authority1  
for my kingdom is not of this world4    
,be not alarmed1 like ,herod1 who       
trembled1 when he heard that ,christ    
was born1 and slew so many innocent     
children1 hoping to include the         
,saviour in that calamity4 ,his fear    
shewed itself in cruel wrath4 ,but  my  
kingdom1 says ,christ1 is not of this   
world4 ,therefore enter this  kingdom   
without fear4 ,come with faith1 and     

provoke not the king to  anger by your  
delay4    ,,xv4 ,there is a caution too 
necessary to be given1 against drawing  
too close a parallel between ancient and
 modern times4 ,for it is but  seldom   
that any one can adduce a case exactly  
conformable to his  own circumstances4  
,to draw such pretexts from the         
interpretation of  prophecy is the      
highest presumption4 ,for no prophecy   
that is yet to  be fulfilled can be     
unfolded without the aid of a prophetic 
spirit4  ,the times even of events1 that
 are certain1 may escape our notice4    
,nor is it every prediction1 unless it  
be accompanied with an express  command 
from ,god1 that can justify recourse to 
arms3 sometimes indeed  ,god brings his 
predicted designs to their issue by the 
means of wicked  instruments4    ,,xvi4 
,as the imperfect obligations of        
charity1 and other virtues of the  same 
kind are not cognizable in a court of   
justice1 so neither can the  performance
 of them be compelled by force of arms4 

,for it is not the  moral nature of a   
duty that can enforce its fulfillment1  
but there must  be some legal right in  
one of the parties to exact the         
obligation4 ,for  the moral obligation  
receives an additional weight from such 
a right4  ,this obligation therefore    
must be united to the former to give a  
war  the character of a just war4 ,thus 
a person who has conferred a favour1    
has not1 strictly speaking1 a ,,right to
 demand a return1 for that would  be    
converting an act of kindness into a    
contract4    ,,xvii4 ,it is necessary to
 observe that a war may be just in its  
origin1  and yet the intentions of its  
authors may become unjust in the course 
of its prosecution4 ,for some other     
motive1 not unlawful ,,in ,,itself1  may
 actuate them more powerfully than the  
original right1 for the  attainment of  
which the war was begun4 ,it is         
laudable1 for instance1  to maintain    
national honour2 it is laudable to      
pursue a public or a  private interest1 

and yet those objects may not form the  
justifiable  grounds of the war in      
question4    ,a war may gradually change
 its nature and its object from the     
prosecution of a right to the desire of 
seconding or supporting the             
aggrandizement of some other power4 ,but
 such motives1 though blamable1  when   
even connected with a just war1 do not  
render the war ,,itself  unjust1 nor    
invalidate its conquests4               
,,chapter ,,xxiii4    ,,on ,,doubtful   
,,causes4      ,origin of moral         
doubts--,the dictates of conscience1    
though erroneous1      not to be        
violated--,opposite opinions supported  
by argument1 or      by authority--,in  
doubtful and important matters the safer
 side of      the question to be        
followed--,in such cases it is right to 
abstain      from war--,disputes settled
 by conference or                       
arbitration--,christian                 
duties--,whether single combat is       
allowable in order to avoid             

war--,in cases of equal doubt the claims
 of the present possessor to      be    
preferred--,where neither party is in   
possession1 claims to be                
divided--,whether a war can be just on  
both sides1 explained by a              
distinction4      ,i4 ,there is much    
truth in ,aristotle's observation that  
moral reasonings  can never amount to   
the certainty of mathematical           
demonstration4  ,because in mathematical
 reasoning1 all the figures are         
considered  in the abstract1 purely by  
themselves1 and without relation to the 
circumstances of time or place1 so that 
there is nothing to warp the  judgment  
from the object immediately under       
consideration4 ,besides the  figures in 
general form a direct contrast to each  
other4 ,thus1 for  instance1 there is no
 intermediate line between a straight   
line and a  curve4    ,but it is not so 
in morals1 where the least circumstances
 vary the  subject1 and admit a latitude
 of interpretation1 settling the points 

of truth and justice between two        
extremes4 ,so that between what is      
right and what is unlawful there is a   
middle space1 where it is easy to       
incline to the one side1 or to the      
other4 ,this occasions an ambiguity     
somewhat like the difficulty of deciding
 the precise moment1 where the  twilight
 begins1 and where it ends4 ,from hence 
,aristotle concludes that  it is        
sometimes difficult to determine1       
between two extremes1 what line  of     
conduct ought to be chosen or rejected4 
,,ii4 ,but it must be laid down as a    
necessary principle1 that although  an  
action may in reality be just1 yet if   
the party doing it1 after  weighing     
every circumstance1 cannot reconcile the
 act to his  conscience1 he incurs some 
degree of guilt4 ,for whatever is not of
  faith1 says the ,apostle1 is sin2     
where1 by the term faith he means  a    
deliberate judgment of the mind4 ,for   
,god has given conscience a  judicial   
power to be the sovereign guide of human

 actions1 by despising  whose           
admonitions the mind is stupified into  
brutal hardness4 ,for  it often happens 
that judgment can point out nothing     
certain1 but  hesitates2 and when such  
doubts and hesitations cannot           
satisfactorily  be cleared up1 the rule 
of ,cicero is a safe one to follow1 who 
says1  that it is an excellent          
injunction1 which forbids us to do a    
thing of  the rectitude or impropriety  
of which we entertain a doubt4    ,but  
this rule cannot be applied1 where of   
two things1 in the choice  of which     
there is equal doubt1 the one must be   
done1 in which case  that must be       
selected1 which seems to be the least   
unjust4 ,for on all  occasions1 where a 
choice cannot be avoided1 the less of   
two evils  assumes the appearance of a  
virtue4    ,,iii4 ,but in doubtful      
cases1 after examination1 the mind      
seldom remains  neuter1 but inclines to 
one side1 or the other1 persuaded either
 by  the merits of the case1 or by      

respect for the judgment of those1 who  
have delivered an opinion upon the      
question4 ,now the merits of the case   
are derived either from the causes1 the 
effects1 or other concomitant           
circumstances4    ,,iv4 ,to apprehend   
such distinctions properly1 practice and
 penetration  are necessary1 and where  
men have not in themselves a capacity   
for  the active exercise of judgment it 
behoves them to follow the maxims  of   
others1 who are distinguished by their  
wisdom and experience4  ,for1 in the    
opinion of ,aristotle1 those things are 
probably just1 or  true1 which seem so  
to all1 or to the greater part of men of
 worth4  ,and this is the method of     
judging pursued by ,sovereign ,princes1 
whose  engagements in the affairs of    
life allow them but little leisure  for 
study and deliberation4 ,thus the       
ancient ,romans never undertook  wars1  
till they had consulted the sacred      
college1 established for  that purpose1 
and the ,christian ,emperors scarcely   

ever did so without  advising with the  
,bishops1 in order to be apprized of any
 thing therein  that might affect       
religion4    ,v4 ,it may happen in many 
disputed points1 that the intrinsic     
merits of  the case1 or the opinions of 
the learned1 are equal on both sides4   
,when  that happens1 if the matters in  
discussion are of no great importance1  
there is nothing to blame in the person1
 that makes his choice either  way4 ,but
 in matters of moment1 where the lives  
of men are at stake1 the  decision      
should incline to the safer side1       
according to the proverbial  maxim1     
which pronounces it better to acquit the
 guilty than to condemn  the innocent4  
,,vi4 ,war then being an object of such 
weighty magnitude1 in which the         
innocent must often be involved in the  
sufferings of the guilty1  between      
wavering opinions the balance should    
incline in favour of peace4    ,there   
are three methods1 by which independent 
nations may settle their  disputed      

rights without coming to the decision of
 the sword4    ,,vii4 ,the first method 
is that of conference4 ,for1 in the     
words  of ,cicero1 there being two      
methods of deciding quarrels1 the  one  
by discussion and the other by force1   
the former1 a peculiar  characteristic  
of man1 and the latter1 of the brute    
creation3 when  the first of these      
methods fails1 men are obliged to have  
recourse  to the latter4 ,mardonius1 in 
the ,polyhymnia of ,herodotus1 blames   
the ,grecians1 who1 being united in one 
language1 might settle their  quarrels  
by messengers of peace1 by heralds1 and 
negotiations1 rather  than by war4      
,,viii4 ,the other method is that of    
compromise1 which takes place  between  
those1 who have no common judge4 ,among 
innumerable instances  of this kind in  
ancient history1 we may select that     
given by ,xenophon  in his account of   
,cyrus1 where that prince takes the king
 of the  ,indians for arbitrator between
 himself and the king of ,assyria4 ,the 

,carthaginians in their disputes with   
,masinissa prefer a settlement of  this 
kind before a decision of war4 ,livy too
 informs us that the ,romans            
themselves1 in a dispute with the       
,samnites1 made an appeal to the  common
 allies of both4    ,the office of      
deciding wars and putting an end to the 
contentions of  armies was assigned1    
according to ,strabo1 to the ,druids of 
the ,gauls1  and upon the testimony of  
the same writer1 it formed a part of the
  priestly functions among the          
,iberians4    ,surely then it is a mode 
of terminating their disputes1 balancing
  their powers1 and settling their      
pretensions worthy to be adopted by     
,christian ,kings and ,states4 ,for if1 
in order to avoid trials before  judges 
who were strangers to the true religion1
 the ,jews and ,christians  appointed   
arbitrators of their own1 and it was a  
practice recommended  and enjoined by   
,st4 ,paul1 how much more ought such a  
practice to be  recommended and         

enforced1 to gain the still nobler end  
of preventing  the calamities of war4   
,these and many other reasons of no less
 importance might be advanced  for      
recommending to ,christian powers       
general congresses for the  adjustment  
of their various interests1 and for     
compelling the  refractory to submit to 
equitable terms of peace4    ,,ix4 ,a   
third method of terminating disputes1   
without hostilities1 was  by lot1 a     
practice commended by ,dion ,chrysostom 
in his speech on the  interposition of  
fortune in directing affairs1 and it was
 commended  long before him by ,solomon 
in the xviii4 chapter of his ,proverbs4 
,x4 ,nearly related to the last named   
method is that of single combat1 a      
practice recommended under the idea that
 by the risque of two lives a  quarrel  
might be decided1 which would otherwise 
have cost the blood of  thousands4 ,in  
,livy we find ,metius addressing ,tullus
 in the following  terms1 let us try    
some method of determining to whom the  

pre-eminence  shall belong1 without     
wasting the blood of each people4       
,strabo says  it was the practice of the
 ancient ,greeks1 and ,aeneas proposed  
it to  ,turnus1 as the most equitable   
way of settling their pretensions4 ,it  
is  described too as the custom of the  
ancient ,franks4    ,,xi4 ,although in  
doubtful cases1 both sides are bound to 
devise every  means of avoiding         
hostilities1 yet it is a duty more      
incumbent upon  the claimant than upon  
the immediate possessor of whatever may 
be the  subject of dispute4 ,for it is a
 rule not only of civil1 but of natural 
law1 that1 where the pretensions are    
equal1 those of the possessor are  to be
 preferred4    ,to the foregoing remarks
 an additional observation may be made1 
that if  any one1 knowing his           
pretensions to be just1 cannot produce  
sufficient  proofs to convict the       
intruder of injustice1 he cannot        
lawfully have  recourse to arms1 because
 he has no ,,ostensible ,,right1 by     

which he can  compel the intruder to    
relinquish the possession4    ,,xii4    
,but where the right is ambiguous1 and  
neither party has  possession1 the      
pretender1 who refuses to divide the    
claims1 may  reasonably be charged with 
injustice4    ,,xiii4 ,from what has    
been said it will not be difficult to   
settle a  much agitated question1       
whether1 with respect to those1 who are 
the  principal movers of a war1 there   
can be justice on both sides4 ,for      
there are distinctions proper to be made
 in the various acceptations of  the    
word ,,just4    ,a thing is said to be  
just1 either as to its causes1 or its   
effects4  ,the causes too may be        
confined either to justice in a         
,,particular  acceptation1 or they may  
be extended so as to include under that 
name every kind of rectitude4 ,again1 a 
particular acceptation may be  divided  
into two kinds1 one relating to the     
,,action1 and the other to  the         
agent4#ef ,an agent may be said to act  

justly1 when1 in what he  does1 he      
commits no breach of ,,strict ,,law1    
though his conduct may not be           
conformable to equity4    ,in a         
,,particular acceptation of the word    
justice1 with regard to  a matter in    
dispute1 it cannot in war1 any more than
 in legal  proceedings1 apply to both   
sides4 ,for there can be no moral       
principle1  commanding us1 under the    
same circumstances1 both to ,,do1 and to
 ,,abstain  from a particular action4   
,it may happen indeed that neither of   
two  belligerent powers may act         
unjustly4 ,for no one can be charged    
with  acting unjustly unless he knows   
that he is doing so2 but there are      
many1 who are not aware of the nature1  
extent1 and consequences of  their      
measures4 ,thus in a law-suit1 both     
parties may sincerely believe  that they
 have justice on their side4 ,for many  
things both in law and  fact1 which     
would establish a right1 may escape the 
notice of men4    ,in a ,,general       

acceptation1 an action may be called    
just1 where the  agent is free from     
every kind of blame4 ,yet in many cases 
an agent may  deviate from the strict   
rules of legal justice1 and be liable to
 no  blame1 when that deviation is owing
 to unavoidable ignorance1 there  having
 been neither time nor opportunity      
sufficient for him to know  the         
substance1 or perhaps existence of the  
law4 ,so it may happen in  law-suits1   
that both parties are free not only from
 the imputation  of injustice1 but from 
all blame1 especially where either of   
them is  litigating a matter not on his 
own1 but on another's account2 as for   
instance where a guardian is acting for 
his ward1 he would not be  authorized in
 abandoning even a doubted right4       
,aristotle says that in  matters of     
disputed right neither side can be      
charged with injustice2  conformably to 
which opinion ,quintilian observes that 
an upright  pleader may be engaged on   
either side of the question4 ,aristotle 

further observes that passing a just    
judgment is an ambiguous term1          
signifying that a judge determines      
either according to the strict  letter  
of the law1 or according to the dictates
 of his own conscience4  ,and1 in       
another place1 he has said that giving a
 wrong judgment through  ignorance is no
 act of injustice4    ,but in matters of
 war and peace1 where such weighty and  
varied  interests on all sides are      
concerned1 it would be difficult to     
obtain  a judgment purely impartial1 and
 abstracted from all personal motives1  
unless there be the most clear and      
undeniable evidence on the points in    
question4    ,if we denominate a thing  
to be just1 from its effect in          
conferring  certain rights1 in this     
sense it is plain that in war there may 
be  justice on both sides4 ,in the same 
manner1 a sentence not strictly  legal1 
or a possession not perfectly just may  
nevertheless confer  certain rights4    
,,chapter ,,xxiv4    ,,precautions      

,,against ,,rashly ,,engaging ,,in      
,,war1 ,,even ,,upon ,,just ,,grounds4  
,relaxation of right in order to avoid  
war--particularly                       
penalties--,self-preservation motive for
 forbearing                             
hostilities--,prudential rules in the   
choice of advantages--,peace            
preferable to the extermination of      
hostile powers--,forbearance            
prudent in inferior powers--,war not to 
be undertaken1 but from      necessity4 
,i4 ,although it seems not to fall      
within the immediate province of a      
treatise1 entitled the ,,rights ,,of    
,,war1 to enter into an investigation of
  other moral duties1 which the         
relations of war and peace prescribe1   
yet  it may not be improper slightly to 
touch upon certain errors1 which it  is 
necessary to obviate1 in order to       
prevent any one from supposing1  that1  
after establishing the right of war1 he 
is authorized1 ,,instantly  or at ,,all 
,,times1 to carry his principles into   

action1 and to reduce his  theory to    
practice4 ,so far from this1 it         
frequently happens that it is  an act of
 greater piety and rectitude to yield a 
right than to enforce  it4    ,it was   
before shewn1 in its proper place how   
honourable it is to be  regardless of   
our own lives1 where we can preserve the
 lives1 and  promote the lasting welfare
 of others4 ,a duty that should operate 
with  greater force upon ,christians1   
who have before their eyes continually  
the example of him1 who died to save us1
 while we were enemies and  ungodly4 ,an
 example which calls upon us1 in the    
most affecting manner1  not to insist   
upon the rigorous prosecution of our    
justest rights1  where it cannot be done
 but by the calamities1 which war       
occasions4  ,if arguments and motives   
like these wanted authorities1 abundance
 of  authorities might be adduced for   
their support4    ,,ii4 ,many reasons   
might be brought to dissuade us from    
urging the full  infliction of a        

punishment4 ,there is an obvious        
instance in the conduct  of fathers1 who
 connive at many faults in their        
children4 ,but whoever1  is authorized  
to punish another1 assumes the character
 of a sovereign  ruler1 that is1 of a   
father2 in allusion to which ,st4       
,augustin1  addressing ,count           
,marcellinus1 says1 ,o ,christian       
,judge1 fulfil the  office of a pious   
father4    ,sometimes indeed men are so 
circumstanced1 that to relinquish a     
right  becomes not only a laudable act1 
but a debt of respect to that law1      
which commands us to love our enemies3 a
 law to be respected and obeyed  not    
only for its intrinsic value1 but as    
being a precept of the gospel4  ,by the 
same law1 and for the same reasons1 we  
are commanded to pray for  and to       
promote the welfare and safety of       
,christian ,princes and ,kings1  because
 their welfare and safety are so        
essential to the order1 peace1  and     
happiness of society4    ,,iii4 ,with   

respect to the pardon of offences       
committed against  ourselves1 little    
need be said1 as it is known to be a    
leading clause  in the code of a        
,christian's duty1 to which he readily  
and freely  submits1 knowing that ,god  
for ,christ's sake has forgiven him4    
,thus  revealed law adds a sanction to  
what was known by heathens to be an     
amiable precept4 ,cicero has drawn a    
fine character of ,caesar1 in which  he 
commends the excellence of his memory   
that could recollect every  thing but   
injuries4 ,we find many noble examples  
of this excellent  virtue in the        
writings of ,moses and in various other 
parts of  scripture4 ,these1 and these  
motives ,,alone1 when they can safely be
  complied with are sufficient to keep  
the sword within its scabbard4 ,for  the
 debt of love and forbearance to our    
enemies is an obligation1 which  it is  
honourable to discharge4    ,,iv4 ,it is
 often a duty1 which we owe to our      
country and ourselves1  to forbear      

having recourse to arms4 ,after the     
college of heralds had  pronounced a war
 to be just we are informed by ,plutarch
 in the life of  ,numa1 that the ,senate
 further deliberated1 whether it was    
expedient  to undertake it4 ,according  
to our ,saviour's beautiful and         
instructive  parable1 a king1 when he is
 obliged to go to war with another king1
  should first sit down1 an expression  
implying an act of deliberation1  and   
consider within himself1 whether1 with  
ten thousand men he is  able to         
encounter one who is coming against him 
with twenty times  that number3 and if  
he finds himself unequal to the contest1
 before  the enemy has entered his      
territories he will send an embassy to  
him  offering terms of peace4    ,v4 ,in
 all cases of deliberation1 not only the
 ultimate but the  intermediate objects 
leading to the principal ends are to be 
considered4 ,the final object is always 
some good1 or at least the  evasion of  
some evil1 which amounts to the same4   

,the means are never  to be considered  
by ,,themselves1 but only as they have a
 tendency to the  proposed end4         
,wherefore in all cases of deliberation1
 the proportion1  which the means and   
the end bear to each other1 is to be    
duly weighed1  by comparing them        
together3 a mode of comparison1 in which
 there are  three rules necessary to be 
observed4    ,the first thing1 in a     
moral point of view1 to be considered   
is1 what  tendency the desired object   
has to produce good or evil2 and1 if the
  former has the preponderancy1 we are  
then at liberty to chuse it4--,in  the  
second place1 if it appears difficult to
 decide1 whether the good  or the evil  
predominates1 we may chuse the object1  
if1 in the choice  and use of our means1
 we can give a turn to affairs1 that may
 throw  the preponderance into the scale
 of advantage--or lastly if the good    
and the evil bear no proportion to each 
other1 nor the means1 ,,at ,,the        
,,first ,,view1 appear adequate to the  

end1 if1 in pursuing an object1  the    
tendency to good1 compared with the     
tendency to evil be greater  than the   
evil itself when compared with the good2
 or if the good1  in comparison of the  
evil1 be greater than the tendency to   
evil1 in  comparison of the tendency to 
good1#eg we may decide in favour of it4 
,cicero has treated these abstruse      
points in a more popular and pleasing   
manner than abstract reasoning would    
allow4 ,applying all the beauties  of   
eloquence to elucidate moral truth1 he  
says1 it is the height of  folly and    
presumption ,,unnecessarily to expose   
ourselves to dangers4 ,in  encountering 
calamities we must imitate the conduct  
of physicians who  use gentle remedies  
with weakly constitutions4 ,but in      
constitutions  of a stronger cast1      
especially1 in virulent disorders1 they 
must  have recourse to more powerful1   
though more dangerous expedients4 ,in   
the same manner1 a skilful pilot would  
not attempt to face the wind  directly1 

but would tack about in order to avoid  
its fury4    ,,vi4 ,an example of evils1
 that ought by all possible means to be 
avoided1 is furnished by the            
consultations among the states of ,gaul1
  who1 according to the account of      
,tacitus1 deliberated1 whether they     
should make choice of liberty or peace4 
,by liberty is here meant civil         
liberty1 that is1 the right of governing
 themselves1 and remaining  independent 
states2 and by peace is meant such a    
peace as would prevent  the whole people
 from being exterminated1 a calamity    
like that which  befel the ,jews1 when  
their city was besieged by ,titus4      
,in such cases reason itself dictates   
the choice of peace1 as the only  means 
of preserving life1 which is the        
immediate gift of ,god1 and the         
foundation of every blessing4 ,so that  
the ,almighty1 as we read in  his sacred
 volume1 deems it a kindness1 when      
instead of destroying  a people1 he     
permits them to be reduced to slavery4  

,therefore he  admonishes the ,hebrews1 
by the mouth of his prophet1 to         
surrender to  the ,babylonians1 rather  
than to die by pestilence and famine4   
,what has been said of submitting to    
disadvantages1 and some calamities  for 
the preservation of life or liberty1 may
 be applied to every object  of dear    
value4 ,as ,aristides says1 it is a     
moral duty in a storm1 to  save the ship
 by casting overboard the goods1 but not
 the crew4    ,,vii4 ,in exacting       
punishment it is necessary to use the   
precaution of  avoiding hostilities with
 a power of equal strength4 ,for to     
avenge a  wrong1 or to assert a right by
 force of arms requires a superiority of
  strength4 ,so that not only prudence1 
but a regard for their subjects  will at
 all times deter rulers from involving  
their people in the  calamities of war4 
,a principle of justice too1 the sole   
directress of  human affairs1 binding   
sovereigns and subjects to each other by
 their  mutual interests1 will teach    

this lesson of precaution4 ,for         
reparation  must be looked for at the   
hands of those1 who bring on the        
calamities  of wanton and unnecessary   
war4 ,livy calls that a just1 which is a
  necessary war1 and it is a pious      
cause1 when no hope is left1 but in     
recourse to arms4    ,,viii4 ,it is but 
now and then a cause of such imperious  
necessity  occurs1 as to demand the     
decision of the sword1 and that is1     
when1 as  ,florus says1 the desertion of
 a right will be followed by calamities 
far more cruel1 than the fiercest wars4 
,seneca says1 that it is right  to meet 
danger1 when equal harm would result    
from acquiescing in an  injury1 and in  
this1 he is supported by ,tacitus1 who  
calls war a  happy exchange for a       
miserable and insecure peace1 and the   
same  animated writer in another place  
observes1 that an oppressed people  may 
recover their liberty by daring         
enterprize1 and1 if defeated they       
cannot be reduced to greater subjection 

than before2 a sentiment1 with  which   
,livy accords1 in naming peace1 when    
coupled with servitude1 a  far more     
grievous calamity1 than all the horrors 
of war4 ,but it is not  so1 as ,cicero  
says1 where defeat will be attended with
 proscription1  and victory with        
bondage4    ,,ix4 ,another necessary    
precaution relates to the ,,time1 when  
it is  proper to undertake a war1 which 
depends upon a due calculation1  whether
 there are resources and strength       
sufficient to support our just          
pretensions4 ,this is conformable to    
what was said by ,augustus1 that no  war
 should be undertaken1 but where the    
hopes of advantage could be  shewn to   
overbalance the apprehensions of ruin4  
,scipio ,africanus1 and  ,lucius        
,aemilius ,paulus used to speak in terms
 not inapplicable to this  subject1 for 
they said it was never right to try the 
event of battle1  but under extreme     
necessity1 or favourable circumstances4 
,the above precautions are of great use1

 where we hope by the dread and  fame of
 our preparations to accomplish our     
object with little or no  danger4       
,,chapter ,,xxv4    ,,the ,,causes ,,of 
,,undertaking ,,war ,,for ,,others4     
,sovereigns may engage in war to support
 the rights of their                    
subjects--,whether an innocent subject  
can be delivered up to      an enemy to 
avoid danger--,wars justly undertaken in
 support of      confederates upon      
equal1 or unequal terms--,for           
friends--,for      any men--,omission of
 this duty not blamable1 from motives of
      self-preservation--,whether war   
may be justly undertaken in defence     
of another's subjects1 explained by     
distinctions4      ,i4 ,in speaking of  
belligerent powers1 it was shewn that   
the law of  nature authorises the       
assertion not only of our own rights1   
but of  those also belonging to others4 
,the causes therefore1 which justify    
the principals engaged in war1 will     
justify those also1 who afford          

assistance to others4 ,but whether any  
one presides over an household1  or a   
state1 the first and most necessary care
 is the support of his  dependents or   
subjects4 ,for the household forms but  
one body with the  master1 and the      
people with the sovereign4 ,so the      
people of ,israel  under the command of 
,joshua took up arms in support of the  
,gibeonites1  whom they had subdued4    
,our forefathers1 said ,cicero to the   
,romans1  often engaged in war to       
support the rights of merchants1 whose  
vessels  had been plundered4 ,the same  
,romans who would refuse to take arms   
for  a people who were only allies1 did 
not hesitate to assert by force of  arms
 the injured rights of the same1 when   
they became their subjects4    ,,ii4    
,yet the cause of any subject1 although 
it may be a just cause1 does  not always
 bind sovereigns or rulers to take arms3
 but only when it  can be done without  
inconvenience to all1 or the greater    
part of their  subjects4 ,for the       

interests of the whole community1 rather
 than those  of particular parts1 are   
the principal objects of a sovereign's  
care2  and the greater any part is1 the 
nearer its claims and pretensions       
approximate to those of the whole4      
,,iii4 ,some have maintained the        
position1 that if an enemy requires  the
 surrender of a citizen1 however        
innocent1 the demand must               
unquestionably be complied with1 if the 
state is too feeble to resist  it4 ,this
 opinion is strongly controverted by    
,vasquez1 but if we attend  to his      
meaning more than his words1 we shall   
find it to be the drift  of his         
argument1 that such a citizen ought not 
to be rashly abandoned1  while there    
remains any possible hope of protecting 
him4 ,for as a  case in point1 he       
alleges the conduct of the ,italian     
,infantry1 who1  upon receiving         
assurances of protection from ,caesar1  
deserted ,pompey1  even before he was   
reduced to absolute despair3 a conduct  

which he  deservedly reprobates in the  
strongest terms4    ,but whether an     
innocent citizen may be given up into   
the hands of an  enemy to avoid imminent
 destruction1 which would otherwise fall
 upon  the state1 is a point that ,,has 
,,been formerly1 and ,,is still disputed
 by  the learned1 according to the      
beautiful fable1 which ,demosthenes told
  of the wolves1 who demanded of the    
sheep the surrender of the dogs1 as  the
 only terms of peace4 ,the lawfulness of
 this is denied not only by  ,vasquez1  
but by one1 whose opinions that writer  
condemns1 as bearing a  near approach to
 perfidy4 ,sotus holds it as an         
established maxim1 that  such a citizen 
is bound to deliver himself up3 this    
,vasquez denies1  because the nature of 
civil society1 which every one has      
entered into  for his own advantage1    
requires no such thing4    ,no          
conclusion can be drawn from hence1     
except that a citizen is not  bound to  
this by any ,,right ,,strictly ,,so     

,,called1 while at the same time  the   
law of charity will not suffer him to   
act otherwise4 ,for there are  many     
duties not properly included in the idea
 of strict justice4 ,these  are regarded
 as acts of good will1 the performance  
of which is not only  crowned with      
praise1 but the omission of them cannot 
escape censure4    ,such is the         
complexion of the following maxim1 that 
every one should  prefer the lives of an
 innumerable and innocent multitude to  
his own  personal and private welfare4  
,cicero1 in defending ,publius ,sextius1
  says1 ,if ,i were taking a voyage with
 my friends1 and happening to  meet with
 a fleet of pirates1 they threatened to 
sink our little bark1  unless the crew  
surrendered me as the victim to appease 
their fury1  ,i would sooner throw      
myself into the deep1 than suffer my    
companions  out of their affection to me
 to encounter sure death1 or even       
imminent  danger4    ,but after         
establishing this point1 there remains a

 doubt1 whether any  one can be         
,,compelled to do what he is ,,bound to 
do4 ,sotus denies this1  and in support 
of his argument quotes the case of a    
rich man1 who1  though bound from       
motives of charity to supply the wants  
of the needy1  cannot be compelled to do
 so4 ,but the transactions of equals    
with each  other1 must be regulated upon
 principles very different from those   
that regulate the mutual relations of   
sovereigns and subjects4 ,for an  equal 
cannot compel an equal to the           
performance of any thing1 but what  he  
is strictly bound by law to perform4    
,but a superior may compel an  inferior 
to the performance of ,,other duties    
besides those of ,,perfect              
,,obligations2 for that is a right      
peculiarly and essentially belonging  to
 the nature of superiority4 ,therefore  
certain legislative provisions  may be  
made1 enacting the performance of such  
duties1 as seem to  partake of the      
nature of benevolence4 ,phocion1 as it  

is mentioned in  ,plutarch's lives1 said
 that the persons1 whom ,alexander      
demanded1 had  reduced the commonwealth 
to such distress1 that if he demanded   
even his  dearest friend ,nicocles1 he  
should vote for delivering him up4      
,,iv4 ,next to subjects1 and even upon  
an equal footing with them1 as to       
claims of protection1 are allies1 a name
 including1 in its consequences  and    
effects1 both those1 who have formed a  
subordinate connection with  another    
power1 and those who have entered into  
engagements of mutual  assistance4 ,yet 
no such compacts can bind either of the 
parties to the  support or prosecution  
of unjust wars4 ,and this is the reason1
 why the  ,lacedaemonians1 before they  
went to war with the ,athenians1 left   
all  their allies at liberty to decide  
for themselves upon the justice of  the 
quarrel4 ,to which an additional        
observation may be made1 that no  ally  
is bound to assist in the prosecution of
 schemes1 which afford no  possible     

prospect of a happy termination4 ,for   
this would be defeating  the very end of
 alliances1 which are contracted from   
motives of public  advantage1 and not   
for a participation in ruin4 ,but any   
power is  obliged to defend an ally even
 against those1 with whom it is already 
connected by subsisting treaties1       
provided those treaties contain no      
express condition prohibiting such      
defence4 ,thus the ,athenians might     
have defended the ,corcyraeans1 ,,in ,a 
,,just ,,cause1 even against the        
,corinthians1 their more ancient allies4
    ,v4 ,a third case is that1 where    
assistance has not been expressly       
promised to a friendly power1 and yet is
 due on the score of  friendship1 if it 
can be given without inconvenience4     
,upon this principle ,abraham took arms 
in defence of his kinsman ,lot3  and the
 ,romans charged the ,antiates to commit
 no acts of piracy upon  the ,greeks1 as
 being a people of the same kindred with
 the ,italians4 ,it  was no unusual     

thing with the ,romans to begin1 or at  
least to threaten  to begin wars not    
only in support of allies1 to whom they 
were bound by  treaty1 but in support of
 any friendly powers4    ,,vi4 ,the last
 and most extensive motive is the common
 tie of one ,,common  ,,nature1 which   
alone is sufficient to oblige men to    
assist each other4    ,,vii4 ,it is a   
question1 whether one man is bound to   
protect another1 or  one people another 
people from injury and aggression4      
,plato thinks that  the individual or   
state not defending another from        
intended violence  is deserving of      
punishment4 ,a case for which provision 
was made by the  laws of the ,egyptians4
    ,but in the first place it is       
certain that no one is bound to give    
assistance or protection1 when it will  
be attended with evident danger4  ,for a
 man's own life and property1 and a     
state's own existence and  preservation 
are either to the individual1 or the    
state1 objects of  greater value and    

prior consideration than the welfare and
 security of  other individuals or      
states4    ,nor will states or          
individuals be bound to risk their own  
safety1 even  when the aggrieved or     
oppressed party cannot be relieved but  
by the  destruction of the invader or   
oppressor4 ,for under some circumstances
  it is impossible successfully to      
oppose cruelty and oppression1 the      
punishment of which must be left to the 
eternal judge of mankind4    ,,viii4    
,though it is a rule established by the 
laws of nature and of  social order1 and
 a rule confirmed by all the records of 
history1 that  every sovereign is       
supreme judge in his own kingdom and    
over his own  subjects1 in whose        
disputes no foreign power can justly    
interfere4  ,yet where a ,busiris1 a    
,phalaris or a ,thracian ,diomede       
provoke their  people to despair and    
resistance by unheard of cruelties1     
having  themselves abandoned all the    
laws of nature1 they lose the rights of 

independent sovereigns1 and can no      
longer claim the privilege of the  law  
of nations4 ,thus ,constantine took up  
arms against ,maxentius and  ,licinius1 
and other ,roman emperors either took1  
or threatened to take  them against the 
,persians1 if they did not desist from  
persecuting the  ,christians4           
,admitting that it would be fraught with
 the greatest dangers if  subjects were 
allowed to redress grievances by force  
of arms1 it  does not necessarily follow
 that other powers are prohibited from  
giving them assistance when labouring   
under grievous oppressions4 ,for        
whenever the impediment to any action is
 of a personal nature1 and not  inherent
 in the action itself1 one person may   
perform for another1  what he cannot do 
for himself1 provided it is an action by
 which some  kind service may be        
rendered4 ,thus a guardian or any other 
friend may  undertake an action for a   
ward1 which he is incapacitated from    
doing  for himself4    ,the impediment1 

which prohibits a ,,subject from making 
resistance1 does  not depend upon the   
nature of the ,,occasion1 which would   
operate equally  upon the feelings of   
men1 whether they were subjects or not1 
but  upon the character of the persons1 
who cannot transfer their natural       
allegiance from their own sovereign to  
another4 ,but this principle does  not  
bind those1 who are not the             
liege-subjects of that sovereign or     
power4 ,their opposition to him or the  
state may sometimes be connected  with  
the defence of the oppressed1 and can   
never be construed into an  act of      
treason4 ,but pretexts of that kind     
cannot always be allowed1  they may     
often be used as the cover of ambitious 
designs4 ,but right  does not           
necessarily lose its nature from being  
in the hands of wicked  men4 ,the sea   
still continues a channel of lawful     
intercourse1 though  sometimes navigated
 by pirates1 and swords are still       
instruments of  defence1 though         

sometimes wielded by robbers or         
assassins4          ,,book ,,iii4       
,,chapter ,i4    ,,what ,,is ,,lawful   
,,in ,,war4      ,what is lawful in     
war--,general ,rules derived from the   
law of nature--,stratagems and          
lies--,arrangement of the      following
 parts--,first rule1 all things         
necessary to the      end lawful--,right
 resulting not only from the origin of  
a war1 but from causes growing out of   
the same--,certain      consequences    
justifiable1 though not originally      
lawful--,what      measures are lawful  
against those who furnish an enemy with 
supplies--,stratagems--,negative--,posit
ive--,sometimes allowable to      use   
words in a sense different from the     
general acceptation--,a      lie        
according to the true notion of it      
injurious to the rights      of         
others--,falsehood allowable in order to
 deceive children or      madmen--,any  
one addressing another without          
intentions to deceive1      not         

answerable for the misconceptions of a  
third person--,a person      not        
answerable for the wilful mistakes of   
those to whom he      speaks--,the      
fictitious threats of a person in       
authority--,fiction      allowable in   
order to save the lives of the innocent1
 or to promote      other equally       
important purposes--,deception lawful   
against an      enemy1 but not including
 promises1 or oaths--,to forbear using  
this privilege an act of generosity and 
,christian simplicity--,not             
allowable to urge others to what is     
unlawful for them1 but not for      us  
to do--,allowable to use the services of
 deserters4      ,i4 ,having1 in the    
preceding books1 considered by what     
persons1 and for  what causes1 war may  
be justly declared and undertaken1 the  
subject  necessarily leads to an inquiry
 into the circumstances1 under which war
  may be undertaken1 into the extent1 to
 which it may be carried1 and  into the 
manner1 in which its rights may be      

enforced4 ,now all these  matters may be
 viewed in the light of privileges      
resulting simply from  the law of nature
 and of nations1 or as the effects of   
some prior  treaty or promise4 ,but the 
actions1 which are authorised by the law
 of  nature1 are those that are first   
entitled to attention4    ,,ii4 ,in the 
first place1 as it has occasionally been
 observed1 the means  employed in the   
pursuit of any object must1 in a great  
degree1 derive  the complexion of their 
moral character from the nature of the  
end to  which they lead4 ,it is evident 
therefore that we may justly avail      
ourselves of those means1 provided they 
be lawful1 which are necessary  to the  
attainment of any right4 ,,right in this
 place means what is  strictly so       
called1 signifying the moral power of   
action1 which any one  as a member of   
society possesses4 ,on which account1 a 
person1 if he has  no other means of    
saving his life1 is justified in using  
any forcible  means of repelling an     

attack1 though he who makes it1 as for  
instance1  a soldier in battle1 in doing
 so1 is guilty of no crime4 ,for this is
 a  right resulting not properly from   
the crime of another1 but from the      
privilege of self-defence1 which nature 
grants to every one4 ,besides1  if any  
one has ,,sure and ,,undoubted grounds  
to apprehend imminent danger  from any  
thing belonging to another1 he may seize
 it without any regard  to the guilt or 
innocence of that owner4 ,yet he does   
not by that  seizure become the         
proprietor of it4 ,for that is not      
necessary to the  end he has in view4   
,he may ,,detain it as a precautionary  
measure1 till  he can obtain            
satisfactory assurance of security4     
,upon the same principle any one has a  
natural right to seize what  belongs to 
him1 and is unlawfully detained by      
another3 or1 if that is  impracticable1 
he may seize something of equal value1  
which is nearly  the same as recovering 
a debt4 ,recoveries of this kind        

establish a  property in the things so  
reclaimed2 which is the only method of  
restoring the equality and repairing the
 breaches of violated justice4  ,so too 
when punishment is lawful and just1 all 
the means absolutely  necessary to      
enforce its execution are also lawful   
and just1 and every  act that forms a   
part of the punishment1 such as         
destroying an enemy's  property and     
country by fire or any other way1 falls 
within the limits  of justice           
proportionable to the offence4    ,,iii4
 ,in the second place1 it is generally  
known that it is not the  ,,origin only 
of a just war which is to be viewed as  
the principal source  of many of our    
rights1 but there may be causes growing 
out of that war  which may give birth to
 additional rights4 ,as in proceedings  
at law1  the sentence of the court may  
give to the successful litigant other   
rights besides those belonging to the   
original matter of dispute4 ,so  those  
who join our enemies1 either as allies  

or subjects1 give us  a right of        
defending ourselves against ,,them also4
 ,so too a nation  engaging in an unjust
 war1 the injustice of which she knows  
and ought  to know1 becomes liable to   
make good all the expences and losses   
incurred1 because she has been guilty of
 occasioning them4 ,in the  same manner 
those powers1 who become auxiliaries in 
wars undertaken  without any reasonable 
grounds1 contract a degree of guilt and 
render  themselves liable to punishment 
in proportion to the injustice of their 
measures4 ,plato approves of war        
conducted so far1 as to compel the      
aggressor to indemnify the injured and  
the innocent4    ,,iv4 ,in the third    
place1 an individual or belligerent     
power may1 in the  prosecution of a     
lawful object1 do many things1 which    
were not in the  contemplation of the   
original design1 and which in           
,,themselves it would  not be lawful to 
do4 ,thus in order to obtain what       
belongs to us1 when  it is impossible to

 recover the specific thing1 we may take
 more than  our due1 under condition of 
repaying whatever is above the real     
value4  ,for the same reason it is      
lawful to attack a ship manned by       
pirates1 or  a house occupied by        
robbers1 although in that ship1 or that 
house there  may be many innocent       
persons1 whose lives are endangered by  
such attack4    ,but we have had        
frequent occasion to remark1 that what  
is conformable  to right taken in its   
strictest sense is not always lawful in 
a moral  point of view4 ,for there are  
many instances1 in which the law of     
charity will not allow us to insist upon
 our right with the utmost  rigour4 ,a  
reason for which it will be necessary to
 guard against  things1 which fall not  
within the original purpose of an       
action1 and  the happening of which     
might be foreseen3 unless indeed the    
action  has a tendency to produce       
advantages1 that will far outweigh the  
consequences of any accidental calamity1

 and the apprehensions of evil  are by  
no means to be put in competition with  
the sure hopes of a  successful issue4  
,but to determine in such cases requires
 no ordinary  penetration and           
discretion4 ,but wherever there is any  
doubt1 it is  always the safer way to   
decide in favour of another's interest1 
than  to follow the bent of our own     
inclination4 ,suffer the tares to grow1 
says our divine teacher1 least in       
rooting up the tares you root up  the   
wheat also4    ,the general destruction1
 which the ,almighty1 in right of his   
supreme  ,majesty1 has sometimes decreed
 and executed1 is not a rule1 which we  
can presume to follow4 ,he has not      
invested men1 in the exercise of  power1
 with those transcendent sovereign      
rights4 ,yet he himself1                
notwithstanding the unchangeable nature 
of his sovereign will1 was  inclined to 
spare the most wicked cities1 if ten    
righteous persons  could be found       
therein4 ,examples like these may       

furnish us with rules  to decide1 how   
far the rights of war against an enemy  
may be exercised  or relaxed4    ,v4 ,it
 frequently occurs as a matter of       
inquiry1 how far we are  authorised to  
act against those1 who are neither      
enemies1 nor wish to  be thought so1 but
 who supply our enemies with certain    
articles4 ,for we  know that it is a    
point1 which on former and recent       
occasions has been  contested with the  
greatest animosity2 some wishing to     
enforce with  all imaginary rigour the  
rights of war1 and others standing up   
for the  freedom of commerce4    ,in the
 first place1 a distinction must be made
 between the commodities  themselves4   
,for there are some1 such as arms for   
instance1 which are  only of use in war2
 there are others again1 which are of no
 use in  war1 but only administer to    
luxury2 but there are some articles1    
such  as money1 provisions1 ships and   
naval stores1 which are of use at all   
times both in peace and war4    ,as to  

conveying articles of the first kind1 it
 is evident that any  one must be ranked
 as an enemy1 who supplies an enemy with
 the means  of prosecuting hostilities4 
,against the conveyance of commodities  
of  the second kind1 no just complaint  
can be made4--,and as to articles of    
the third class1 from their being of a  
doubtful kind1 a distinction  must be   
made between the times of war and peace4
 ,for if a power cannot  defend itself1 
but by intercepting the supplies sent to
 an enemy1  necessity will justify such 
a step1 but upon condition of making    
restoration1 unless there be some       
additional reasons to the contrary4     
,but if the conveyance of goods to an   
enemy tends to obstruct any  belligerent
 power in the prosecution of a lawful   
right1 and the person  so conveying them
 possesses the means of knowing it2 if  
that power1 for  instance1 is besieging 
a town1 or blockading a port1 in        
expectation of  a speedy surrender and a
 peace1 the person1 who furnishes the   

enemy  with supplies1 and the means of  
prolonged resistance1 will be guilty  of
 an aggression and injury towards that  
power4 ,he will incur the  same guilt1  
as a person would do by assisting a     
debtor to escape from  prison1 and      
thereby to defraud his creditor4 ,his   
goods may be taken by  way of indemnity1
 and in discharge of the debt4 ,if the  
person has not  yet committed the       
injury1 but only intended to do so1 the 
aggrieved  power will have a right to   
detain his goods1 in order to compel him
 to  give future security1 either by    
putting into his hands hostages1 or     
pledges2 or indeed in any other way4    
,but if there are evident proofs  of    
injustice in an enemy's conduct the     
person who supports him in such  a case1
 by furnishing him with succours1 will  
be guilty not barely of  a civil injury1
 but his giving assistance will amount  
to a crime as  enormous1 as it would be 
to rescue a criminal in the very face of
 the  judge4 ,and on that account the   

injured power may proceed against him as
  a criminal1 and punish him by a       
confiscation of his goods4    ,these are
 the reasons1 which induce belligerent  
powers to issue  manifestoes1 as an     
appeal to other states1 upon the justice
 of their  cause1 and their probable    
hopes of ultimate success4 ,this        
question has  been introduced under the 
article1 which refers to the law of     
nature1  as history supplies us with no 
precedent to deduce its establishment   
from the voluntary law of nations4      
,we are informed by ,polybius1 in his   
first book1 that the ,carthaginians     
seized some of the ,romans1 who were    
carrying supplies to their enemies1     
though they afterwards gave them up1    
upon the demand of the ,romans4         
,plutarch says that when ,demetrius had 
invested ,attica1 and taken the         
neighbouring towns of ,eleusis and      
,rhamnus1 he ordered the master and     
pilot of a ship1 attempting to convey   
provisions into ,athens1 to be  hanged1 

as he designed to reduce that city by   
famine3 this act of  rigour deterred    
others from doing the same1 and by that 
means he made  himself master of the    
,city4    ,,vi4 ,wars1 for the          
attainment of their objects1 it cannot  
be denied1  must employ force and terror
 as their most proper agents4 ,but a    
doubt  is sometimes entertained1 whether
 stratagem may be lawfully used in  war4
 ,the general sense of mankind seems to 
have approved of such a  mode of        
warfare4 ,for ,homer commends his hero1 
,ulysses1 no less for  his ability in   
military stratagem1 than for his wisdom4
 ,xenophon1 who  was a philosopher as   
well as a soldier and historian1 has    
said1 that  nothing can be more useful  
in war than a well-timed stratagem1 with
  whom ,brasidas1 in ,thucydides agrees1
 declaring it to be the method from     
which many great generals have derived  
the most brilliant reputation4  ,and in 
,plutarch1 ,agesilaus maintains1 that   
deceiving an enemy is both  just and    

lawful4 ,the authority of ,polybius may 
be added to those  already named2 for he
 thinks1 that it shews greater talent in
 a general  to avail himself of some    
favourable opportunity to employ a      
stratagem1  than to gain an open battle4
 ,this opinion of poets1 historians1 and
  philosophers is supported by that of  
,theologians4 ,for ,augustin has  said  
that1 in the prosecution of a just war1 
the justice of the cause  is no way     
affected by the attainment of the end1  
whether the object  be accomplished by  
stratagem or open force1 and            
,chrysostom1 in his  beautiful little   
treatise on the priestly office1        
observes1 that the  highest praises are 
bestowed on those generals1 who have    
practised  successful stratagems4 ,yet  
there is one circumstance1 upon which   
the  decision of this question turns    
more than upon any opinion even of the  
highest authority1 and that is1 whether 
stratagem ought to be ranked as  one of 
those evils1 which are prohibited under 

the maxim ,,of ,,not ,,doing  ,,evil1   
,,that ,,good ,,may ,,ensue1 or to be   
reckoned as one of those actions1       
which1 though evil ,,in ,,themselves1   
may be so modified by particular        
occasions1 as to lose their criminality 
in consideration of the good1  to which 
they lead4    ,,vii4 ,there is one kind 
of stratagem1 it is proper to remark1 of
 a  negative1 and another of a positive 
kind4 ,the word stratagem1 upon the     
authority of ,labeo1 taken in a negative
 sense1 includes such actions1  as have 
nothing criminal in them1 though        
calculated to deceive1 where  any one1  
for instance1 uses a degree of          
dissimulation or concealment1  in order 
to defend his own property or that of   
others4#eh ,so that  undoubtedly there  
is something of harshness in the opinion
 of ,cicero1  who says there is no scene
 of life1 that will allow either        
simulation1  or dissimulation to be     
practised4 ,for as you are not bound to 
disclose  to others all that you either 

know or intend2 it follows that1 on     
certain occasions1 some acts of         
dissimulation1 that is1 of concealment  
may be lawful4 ,this is a talent1 which 
,cicero1 in many parts of his  writings1
 acknowledges that it is absolutely     
necessary for statesmen  to possess4    
,the history of ,jeremiah1 in the       
xxxviiith chapter of his  prophecy1     
furnishes a remarkable instance of this 
kind4 ,for when that  prophet was       
interrogated by the king1 respecting the
 event of the  siege1 he prudently1 in  
compliance with the king's orders1      
concealed  the real matter from the     
nobles1 assigning a different1 though   
not a  false reason for the conference1 
which he had had4 ,in the same manner1  
,abraham called ,sarah1 his sister1 an  
appellation used familiarly  at that    
time to denote a near relation by blood1
 concealing the  circumstance of her    
being his wife4    ,,viii4 ,a stratagem 
of a positive kind1 when practised in   
actions1 is  called a feint1 and when   

used in conversation it receives the    
name of  a lie or falsehood4 ,a         
distinction is made by some1 between    
these two  kinds of stratagems1 who say1
 that words are signs of our ideas1 but 
actions are not so4 ,but there is more  
of truth in the opposite opinion1  that 
words of themselves unaccompanied by the
 intention of the speaker1  signify     
nothing more than the inarticulate cries
 would do of any one  labouring under   
grief1 or any other passion3 which      
sounds come under  the denomination of  
actions1 rather than of speech4 ,but    
should it be  said that being able to   
convey to others the conceptions of his 
mind1  by words adapted to the purpose1 
is a peculiar gift of nature1 by which  
man is distinguished from other parts of
 the animated creation1 the  truth of   
this cannot be denied4    ,to which we  
may add that such communication may be  
made not only by  words1 but by signs or
 gestures1 like those used to the dumb2 
it  makes no difference1 whether those  

signs or gestures have any natural      
connection with the thing they are      
intended to signify1 or whether  such a 
connection is only assigned to them by  
custom4 ,equivalent to  such signs or   
gestures is handwriting1 which may be   
considered1 as a  dumb language1        
deriving its force not merely from the  
words used1 and  the particular form of 
the letters1 but from the real intention
 of  the writer1 to be gathered from    
thence3--to be gathered either from  the
 resemblance between the characters and 
the intentions1 as in the  ,egyptian    
hieroglyphics1 or from pure fancy1 as   
among the ,chinese4    ,here likewise   
another distinction is necessary to be  
applied in the  same manner1 as was done
 before1 in order to remove all         
ambiguity in  using the term of ,,the   
,,law ,,of ,,nations4 ,for it was there 
said1 that the  laws established by     
independent and separate states1 whether
 or no  those laws implied any mutual   
obligations1 were denominated the ,,law 

,,of ,,nations4#ei ,so that words1      
gestures1 and signs1 made use of to     
convey a meaning1 imply an obligation1  
in all the persons concerned1 to        
receive and employ them in their common 
acceptation4 ,but the employment  of    
,,other ,,means1 coming under ,,none    
,,of ,,those ,,descriptions1 cannot be  
construed into a violation of any social
 contract1 although some may  be        
deceived thereby4 ,it is the ,,real     
,,nature of the actions that is here    
spoken of1 and not the ,,accidental     
circumstances attending them3 such      
actions for instance1 as occasion no    
mischief2 or if they do so1 there  is no
 guilt1 where there is no treacherous   
design4    ,we have an instance of the  
former kind in the conduct of our       
,saviour1  who1 on the way to ,emmaus1  
pretended to the disciples1 that he was 
going further2 here was a harmless      
stratagem1 unless we interpret the      
words1 as expressive of his intention to
 have gone further1 if he had  not been 

prevented by their efforts and          
entreaties to detain him4 ,and  in      
another part of the sacred history it is
 said1 that he intended  to have passed 
by the ,apostles on the sea1 that is1 he
 intended to  have done it1 had he not  
been so earnestly importuned by them to 
go  into the ship4 ,there is another    
instance too in the conduct of ,paul1   
who circumcised ,timothy1 though he knew
 the ,jews would conclude from  thence1 
that the ordinance of circumcision1     
which in reality had been  abolished1   
was still binding upon the descendants  
of ,israel1 and that  ,paul and ,timothy
 were of the same opinion4 ,whereas     
,paul had no such  intention1 but only  
hoped1 by that means1 to open for       
himself and  ,timothy a way to more     
familiar intercourse with the ,jews4    
,neither could  an ordinance of that    
kind1 when the divine obligation was    
repealed1 any  longer be deemed of such 
importance1 nor could the evil of a     
temporary  error1 resulting from thence1

 and afterwards to be corrected1 be     
regarded as equivalent to the           
opportunity1 which ,paul thought to     
gain1  of making it conducive to the    
introduction of ,christian truth4       
,the ,greek ,fathers have given the name
 of ,,economy1 or ,,management  to      
stratagems of this kind4 ,on this       
subject there is an admirable  sentiment
 in ,clement of ,alexandria1 who1 in    
speaking of a good man1  says that he   
will do many things for the benefit of  
his neighbour  alone1 which he would not
 otherwise have undertaken4    ,one of  
these stratagems was practised by the   
,romans1 who1 during the  time that they
 were besieged in the ,capitol1 threw   
some loaves of  bread into the enemy's  
camp1 that it might not be supposed they
 were  pressed by famine4 ,the feigned  
flight1 which ,joshua ordered his people
  to make1 to assist him in his designs 
upon ,ai1 affords an instance of  a     
stratagem of the second kind2 the       
ensuing mischiefs of which may be       

considered1 as some of the effects of   
lawful war4 ,the ,,original ,,design  of
 that pretended flight does not at all  
affect the question4 ,the  enemy took it
 for a proof of fear2 and he was at     
liberty to do so1  without debarring the
 other of his right to march this way1  
or that1  with an accelerated or        
retarded motion1 with a shew of courage1
 or an  appearance of fear1 as he might 
judge it most expedient4    ,history    
furnishes us with innumerable examples  
of deceptions practised  with success   
upon an enemy1 by assuming his arms1    
ensigns1 colours1 or  uniforms2 all     
which may be justified upon the same    
principle4 ,for all  these are actions1 
which any one may avail himself of at   
his pleasure1  by departing from the    
usual course of his military system4    
,for such  points of discipline and     
system depend upon the will and fancy of
 the  military commanders in each state1
 rather than upon any invariable        
custom1 equally binding upon all        

nations4    ,,ix4 ,those signs1 by which
 the daily intercourse of life is       
maintained1  form a subject of more     
weighty discussion1 with which the      
consideration  of lies or falsehood is  
necessarily interwoven4    ,all         
stratagems of this kind are so direct a 
violation of all moral  principle1 both 
in their nature and consequences1 that  
almost every  page of the revealed will 
of ,god declares their condemnation4    
,solomon  describes a righteous1 that   
is1 a good man1 as one1 who holds every 
false word in detestation1 deprecating  
the least appearance of  deception3 and 
the ,apostle's injunction accords with  
these sentiments1  instructing his      
disciples not to lie to one another4    
,nor is it in the high standard of      
perfection alone1 which the divine      
records present1 that such a            
recommendation of fair1 open1 and       
sincere  dealing is to be found4 ,it is 
the theme of praise with poets and      
philosophers1 and the angry hero of the 

,grecian poet declares1 that  he detests
 the man1 as an infernal being1 who     
utters one thing with  his tongue1 while
 he conceals another in his heart4 ,but 
making some  allowance for poetic       
fiction--we find even the grave1 sober1 
and  discerning1 ,stagirite describing  
falsehood1 as a vile1 and abominable    
refuge1 and painting truth as a lovely  
object1 that must extort the  warmest   
praise4    ,these are all great and high
 authorities in favour of open dealing4 
,yet there are names of no less weight1 
both among sacred and profane  writers1 
whose opinions are a vindication of     
stratagems1 when used upon  ,,proper    
occasions4 ,one writer speaks of a case1
 where stratagem may be  used1 even for 
the benefit of the person1 on whom it is
 practised1 and  adduces the instances  
of a physician1 who1 by means of a      
deception1  overcame the perverseness of
 a patient1 and wrought a salutary cure4
    ,x4 ,to reconcile such a variety of 
discordant opinions1 it may be          

necessary to devise some way of         
examining falsehood both in its more    
extensive1 and more confined            
acceptation4 ,nor is speaking an        
untruth1  ,,unawares1 to be considered  
in the nature of a lie1 but the         
falsehood1  which comes within the      
limits here defined1 is the ,,known and 
,,deliberate  ,,utterance of any thing  
contrary to our real conviction1        
intention1 and  understanding4          
,words1 or signs1 importing the same    
meaning as words1 are generally  taken  
for conceptions of the mind1 yet it is  
no lie for any man to  utter a          
falsehood1 which he believes to be true2
 but the propagation  of a truth1 which 
any one believes to be false1 ,,in ,,him
 amounts to a  lie4 ,there must be in   
the use of the words therefore an       
,,intention to  deceive1 in order to    
constitute a falsehood in the proper and
 common  acceptation4 ,consequently1    
when any one single word1 or the whole  
tenour of a discourse1 admits of more   

significations than one1 either  by the 
use of some popular phrase1 some term of
 art1 or intelligible  figure of speech1
 in that case if the speaker's intention
 correspond  with any one of those      
meanings1 he cannot be charged with     
using  falsehood1 although it is        
possible that a hearer may take his     
words in  a very different sense4 ,it is
 true that using such an ambiguous      
method  of speaking on ,,all ,,occasions
 is not to be approved of1 though there 
are particular circumstances under which
 it may be reconciled with  honour and  
justice4 ,in communicating knowledge1   
for instance1 there  is no harm in using
 a metaphor1 an irony1 or an hyperbole1 
figures of  speech1 tending either to   
adorn or to elucidate a subject4 ,there 
are  cases too1 where by this doubtful  
mode of expression it may be proper  to 
avoid an urgent and impertinent         
question4 ,there is an instance of  the 
former kind in our ,saviour's saying1   
that our friend ,lazarus  sleepeth1     

where the disciples understood him1 as  
if he were speaking  of the refreshing  
rest of an ordinary sleep3 and when he  
spoke of  restoring the temple1 which he
 meant his own body1 he knew that the   
,jews applied what he said to the       
,,material ,,edifice of the ,temple4 ,in
 the  same manner he frequently         
addressed the multitudes in parables1   
which  they could not understand by     
barely hearing1 without that docility   
of mind1 and attention1 which the       
subject required4 ,profane history  too 
furnishes us with an example of the     
second kind1 in the conduct  of         
,vitellius1 who1 as ,tacitus informs us1
 gave ,narcissus doubtful and  ambiguous
 answers1 in order to avoid his urgent  
questions2 as any  explicit declaration 
might have been attended with danger4   
,on the other hand1 it may happen to be 
not only censurable1 but even  wicked to
 use such a manner of speaking1 where   
either the honour of ,god  or the       
welfare of mankind is concerned1 or     

indeed any matter1 which  demands       
explicit avowals1 and open dealing4     
,thus in contracts every  thing         
necessary to their fulfillment ought to 
be fully disclosed to  those concerned4 
,there is an apposite expression of     
,cicero1 who says1  that every degree of
 deception ought to be banished from all
 contracts1  and there is in the old    
,athenian ,laws a proverb1 conformable  
to this1  which says1 there must be     
nothing1 but open dealing in markets4   
,,xi4 ,in strictness of speech such     
ambiguity is excluded from the notion   
of a lie4 ,the common notion of a lie   
therefore is something spoken1  written1
 marked1 or intimated1 which cannot be  
understood1 but in a  sense different   
from the real meaning of the speaker4   
,but a lie1 in  this stricter           
acceptation1 having some thing unlawful 
in its very  nature1 necessarily        
requires that a distinction should be   
made between  it and that latitude of   
expression already explained4 ,and if   

this  acceptation be properly           
considered1 at least according to the   
opinion  prevailing in all nations1 it  
seems1 that no other explanation of it  
is  necessary to be given1 except that  
it is a violation of the existing  and  
permanent rights of the person1 to whom 
a discourse1 or particular  signs1 are  
directed4 ,it is a violation of the     
rights of ,,another2 for  it is evident1
 that no one can utter a falsehood with 
a view to impose  upon himself4 ,the    
rights here spoken of are peculiarly    
connected with  this subject4 ,they     
imply that liberty of judgment1 which   
men are  understood1 by a kind of tacit 
agreement1 to owe to each other in their
  mutual intercourse4 ,for this1 and    
this alone is that mutual obligation1   
which men intended to introduce1 as soon
 as they began to use speech1  or other 
signs of equal import4 ,for without such
 an obligation the  invention of those  
signs would have been perfectly         
nugatory4 ,it is  requisite too1 that at

 the time a discourse is made1 such a   
right or  obligation should remain in   
full force4    ,a right may indeed have 
existed and afterwards have become      
obsolete1  owing to the rise or         
occurrence of some new right3 which is  
the case  with a debt1 that may be      
released by acquittance1 or             
non-performance of  a condition4 ,it is 
farther requisite1 to constitute a      
,,violation ,,of ,,this  ,,right1 that  
the ensuing injury should immediately   
affect the ,,person  ,,addressed3 as in 
contracts1 there can be no injustice1   
but what affects  one of the parties1 or
 persons concerned4    ,and perhaps     
under the head of this right1 it may not
 be improper to  assign a place to that 
,,true ,,speaking1 which ,plato1        
following ,simonides1  classes with     
justice1 in order to form a more        
striking contrast with  that falsehood1 
so often prohibited in ,scripture1 by   
the name of false  witness to1 or       
against1 our neighbour1 and which       

,augustin1 in defining  a lie1 calls an 
intention to deceive4 ,cicero also in   
his offices lays  down truth1 as the    
basis of justice4    ,the right to a    
discovery of the whole truth may be     
relinquished by the  express consent of 
the persons1 who are engaged in a       
treaty3 the one  may declare his        
intention not to disclose certain       
points1 and the other  may allow of this
 reserve4 ,there may be also a tacit    
presumption1 that  there are just       
reasons for such reserve which may      
perhaps be necessary  out of regard to  
the rights of a third person3 rights    
which1 in the  common judgment of all   
sober men1 may be sufficient to         
counterbalance  any obligation in either
 of the persons engaged in the treaty to
 make  a full disclosure of his views   
and sentiments4--,these principles1     
duly considered1 will supply many       
inferences to reconcile any seeming     
contradiction in the opinions1 that have
 been advanced4    ,,xii4 ,in the first 

place1 many things may be said to       
madmen1 or  children1 the ,,literal     
,,meaning of which may not be true1     
without  incurring the guilt of wilful  
falsehood4 ,a practice which seems to be
  allowed by the common sense of all    
mankind4 ,quintilian1 speaking of the   
age of puerility1 says1 it is a period  
of life1 when many useful truths  may be
 taught in the dress of                 
fiction4--,another reason given is1 that
  as children and madmen possess no     
perfect power of judging1 impositions   
of that kind can do no injury to their  
rights1 in such respects4    ,,xiii4    
,secondly1 when a conversation is       
addressed to any one1 who is not        
thereby deceived1 although a third      
person1 not immediately addressed1  may 
misconceive the matter1 there is no     
wilful falsehood in the case4  ,no      
,,wilful ,,falsehood towards the person 
addressed3 because he feels no  greater 
injury from thence1 than an intelligent 
hearer would do from  the recital of a  

fable1 or the use of a metaphor1 irony1 
or hyperbole  in speech4 ,it cannot be  
said that an injury is done to the      
person1  who accidentally and cursorily 
hears a matter1 and misconceives it3    
for being no way concerned1 there is no 
obligation due to him4 ,as  he          
misconceives a thing addressed to       
,,another1 and not to ,,himself1  he    
must take upon his own head all the     
consequences of the mistake4  ,for1     
properly speaking1 the discourse1 ,,with
 ,,respect ,,to ,,him1 is no  discourse1
 but an inexpressive sound that may     
signify one thing as well  as another4  
,so that there was nothing wrong in the 
conduct of ,cato the  ,censor1 who made 
a false promise of assistance to his    
confederates1 nor  in that of ,flaccus1 
who informed others that ,aemilius had  
taken the  enemy's city by storm1       
although the enemy were deceived by it4 
,plutarch  mentions an instance of the  
same kind in the life of ,agesilaus4    
,here no  communication was made to the 

enemy1 and the prejudice he sustained   
was  an accidental thing no way unlawful
 in itself1 either to be wished for  or 
procured4    ,,xiv4 ,in the third place1
 whenever it is certain that the person1
 on  whom a deception is practised1     
discovers that the intent of it was to  
do him a service2 he will not feel it as
 a grievance1 nor can it come  under the
 strict denomination of a lie or        
falsehood4 ,it will be no  more an      
,,injury1 than it would be a ,,theft in 
any one1 presuming upon an  owner's     
consent1 to take something belonging to 
that owner1 in order  to convert it to  
his use in a very beneficial way4 ,for  
in cases of  notorious certainty1 a     
,,presumption may be taken for express  
consent4  ,but it is evident that no man
 would ,,consent to receive an ,,injury4
    ,from hence it appears1 that a      
person is guilty of no treachery1 who   
uses unfounded or fictitious motives to 
console a friend in distress1  as ,arria
 did to ,paetus upon the death of his   

son1 of which there is  an account in   
,pliny's ,epistles1 or in a general1 who
 in a perilous  situation should avail  
himself of false intelligence1 to       
encourage his  troops1 by which perhaps 
a victory might be gained4    ,it may be
 observed likewise1 that the injury done
 to the freedom of  judgment is1 in such
 a case1 of less consequence1 because it
 is but  momentary1 and the real fact is
 soon discovered4    ,,xv4 ,there is a  
fourth case1 which bears a near affinity
 to those  above mentioned1 and that is1
 when any one1 possessing pre-eminent   
authority1 orders another1 in a         
subordinate capacity1 to execute some   
device or stratagem1 conducive either to
 his individual1 or to the  public      
welfare4 ,which ,plato seems to have had
 particularly in view1  in allowing     
those in authority to avail themselves  
of pretexts1 or  stratagems4 ,the same  
writer is very correct in his notion of 
not making  such a device a             
characteristic of that authority1 which 

belongs to the  supreme being4 ,for all 
such devices1 however justifiable they  
may be in  ,,certain ,,cases1 strongly  
betray that imperfection1 which is      
inseparable  from all human systems4    
,the stratagem1 which ,joseph employed  
to obtain further discoveries  without  
making himself known to his brethren1 is
 much commended by  ,philo1 as a mark of
 great policy1 when1 contrary to the    
convictions  and feelings of his own    
mind1 he accused them of being spies1   
and  afterwards charged them with theft4
 ,it was by a stratagem of the same     
kind1 that ,solomon gave proof of his   
inspired wisdom1 when he used the       
,,fictitious threat of dividing the     
living child in order to discover the   
real mother4    ,,xvi4 ,the fifth case1 
which allows a stratagem to be          
practised1 is  that1 where it may be the
 ,,only means of saving the life of an  
innocent  person1 of obtaining some     
object of equal importance1 or of       
diverting  another from the perpetration

 of some horrid design4 ,the heathen    
poet has given a beautiful illustration 
of this in his praises of               
,hypermnestra1 whose conduct he calls a 
splendid stratagem1 ennobling  the      
virgin to all posterity4    ,,xvii4 ,it 
is evident that many writers of         
acknowledged wisdom1 and sober          
judgment1 have carried the point farther
 than has been done in this  treatise1  
in allowing the use of false            
representations to an enemy4 ,in  cases1
 where public enemies are concerned1    
they maintain1 that it is  lawful to    
deviate from those strict rules of      
avowing and disclosing  all our         
intentions1 which they prescribe1 on all
 other occasions4 ,such  is the opinion 
of ,plato and ,xenophon among the       
,greeks1 of ,philo among  the ,jews1 and
 ,chrysostom among ,christians4 ,it may 
not perhaps be amiss  to cite1 in this  
place1 the message sent by the men of   
,jabesh ,gilead  to the ,ammonites1 by  
whom they were besieged1 and also that  

of the  prophet ,elisha1 and at the same
 time to mention the conduct of         
,valerius  ,laevinus1 who boasted of    
having killed ,pyrrhus4    ,the third1  
the fourth and fifth observations above 
made1 may be  illustrated from what is  
said by ,eustratus1 ,archbishop of      
,nice1 ,an  able and upright counsellor 
is not obliged to disclose the whole    
truth3 for there may be occasions1 when 
it may be necessary for him to          
recommend the means of deceiving an     
enemy1 or to employ some stratagem      
towards a friend1 where it may turn to  
his advantage4    ,,xviii4 ,what has    
been said of false speaking must be     
understood as  applied to affirmative   
declarations1 which can be prejudicial  
to no  persons1 but public enemies3 it  
can by no means be taken to include     
promises4 ,for promises confer upon the 
person1 to whom they are made1  a       
peculiar right to claim their full      
performance4 ,and this is a rule1  which
 must take place1 even between public   

enemies2 a rule to which  existing      
hostilities are not allowed to form an  
exception4 ,it is a  maxim proper to be 
enforced in ,,tacit1 as well as in      
,,express agreements3  as when a parley 
or conference is demanded1 there is     
always an ,,implied  promise1 that both 
sides shall attend it with perfect      
safety4 ,but these  are points reserved 
for the discussion of another part of   
this treatise4    ,,xix4 ,it will be    
necessary to repeat an observation made 
before1 with  respect to oaths1 both of 
the affirmative and promissory kind1    
where  it was maintained that they      
exclude all exceptions1 all mental      
reservations towards the person1 to whom
 they are made1 being regarded  not     
merely as a solemn transaction with that
 individual1 but as a  stedfast appeal  
to ,god4 ,such an appeal to the supreme 
being demands the  performance of an    
oath1 even if it gave the individual no 
right to the  same4    ,at the same time
 it was observed1 that a sworn          

declaration is not like  one of any     
other kind1 where an application of     
terms different from  their usual       
meaning may supply the speaker with an  
excuse for evading  their import4 ,but  
truth requires every declaration and    
promise to be  made in terms1 which it  
is supposed that every man of integrity 
and  clear judgment will understand1    
spurning at the impious thought1 that   
men may be deceived by oaths1 as        
children are by toys and trifles4       
,,xx4 ,some nations and individuals     
indeed have rejected the use of those   
stratagems1 which even the law of nature
 allows to be employed as a  means of   
self-defence against an enemy4 ,but they
 did so1 not from any  opinion of their 
unlawfulness1 but from a noble loftiness
 of mind1  and from a confidence in     
their own strength4 ,aelian has         
preserved  a saying of ,pythagoras1 that
 there are two things1 in which man     
approaches nearest to ,god1 in always   
speaking the truth1 and doing good  to  

others4 ,aristotle1 somewhere in his    
,ethics1 calls speaking truth1  the     
freedom of a great soul1 and ,plutarch  
says1 that falsehood is the             
qualification of a slave4 ,but an       
adherence to truth1 in simplicity of    
heart1 is not the only duty required of 
,christians1 in this respect1  they are 
commanded to abstain from all vain      
discourse1 as having for  their example 
him1 in whose mouth there was found no  
guile4    ,,xxi4 ,with respect to the   
actions of men1 there is another rule   
which  may properly come under this     
head1 and that is1 the unlawfulness of  
urging or persuading any one to do an   
unlawful act4 ,for instance1 no  subject
 has a right to lift his hand against   
his sovereign1 to deliver  up a town    
without public authority1 or to despoil 
his neighbour of his  goods4 ,it would  
be unlawful then to encourage the       
subject of an enemy1  as long as he     
continues his subject1 to do any of     
these acts4 ,for the  person1 who urges 

another to do a wicked act1 makes       
himself a partner  in his guilt4 ,nor   
can it be received as a just answer1    
that urging  a subject to the           
perpetration of such a deed is nothing  
more than  employing the lawful means of
 destroying an enemy4 ,for though it may
  be necessary and just to destroy him1 
if possible1 yet that is not the  way1  
in which it should be done4 ,augustin   
has well observed1 that it  makes no    
difference whether any one should commit
 a crime himself1 or  employ another as 
his instrument4    ,but employing the   
spontaneous offers of a deserter is not 
contrary to  the laws of war1 and is a  
very different action from that of      
seducing a  subject from his allegiance4
    ,illustration3 ,,war ,,and ,,peace  
,this is a frontispiece to a ,latin     
edition of ,grotius' ,de ,jure ,belli   
ac ,pacis1 published at ,amsterdam in   
#afgj4 ,it is intended to be            
symbolical of ,war and ,peace acting    
under the direction ,justice1      these

 three figures forming the central      
group4            ,,chapter ,,ii4       
,,in ,,what ,,manner ,,the ,,law ,,of   
,,nations ,,renders ,,the ,,property    
,,of ,,subjects  ,,answerable ,,for     
,,the ,,debts ,,of ,,sovereigns4 ,,the  
,,nature ,,of ,,reprisals4      ,no one 
but an heir bound by the act of         
another--,property of subjects          
answerable for the debts of sovereigns1 
according to the law      of            
,nations--,capture of persons and       
property after satisfaction      refused
 by the aggressor--,reprisals--,personal
 safety of      subjects--,distinction  
made by the law of ,nations in this     
respect4      ,i4 ,the rights accruing  
from the law of ,nations are the points 
next to  be considered1 which may be    
referred either to wars in ,,general1 or
 to  those of a ,,particular            
description4    ,wars in ,,general are  
those1 which properly first come under  
notice4    ,by the ,,literal law of     
nature1 no one is bound by the actions  

of  another1 except the person1 who     
succeeds to his property4 ,for the      
introduction and establishment of       
property introduced and established     
also the power of transferring it with  
all its incumbrances4 ,the  ,emperor    
,zeno however pronounces it repugnant to
 natural justice for  one man to be     
molested for the debts of another4 ,a   
principle1 which  gave rise to the      
distinctions in the ,roman law1 that the
 wife could  not be sued for her        
husband1 nor the husband for his wife1  
nor a son  for his father1 nor a father 
or mother for their son4 ,nor1 as       
,ulpian  clearly states it1 could       
individuals be answerable for the debts 
of  the community1 and more especially  
if that community be possessed of       
property4 ,indeed if that were not the  
case individuals could only  be obliged 
to contribute their due proportion1 as  
members of that  community4    ,seneca  
says1 if any one lends money to my      
country1 ,i am not to be  considered as 

his debtor1 nor to take the debt upon   
myself1 though ,i am  bound to pay my   
due proportion of it4 ,there was a      
special provision  made in the ,roman   
law1 that one peasant should not be     
bound for the  debts of another1 and it 
is laid down as a rule1 that the goods  
of  one person shall not be distrained  
for the debts of another1 even if  they 
be public debts2 and in ,justinian's    
,novels1 pledges for others are         
forbidden1 and the cause assigned for it
 is1 because it is unreasonable  that   
one person should incur the debt1 and   
another be bound to the  payment of it1 
an exaction to which the name of        
,,odious is given4 ,king  ,theodoric    
,cassiodor1 calls it a shocking licence 
for one man to be  detained as a pledge 
for another4    ,,ii4 ,although in the  
preceding observations there may be a   
great deal of  truth1 yet it is         
possible1 and indeed appears actually to
 be the case1  that the voluntary law of
 nations introduced the practice of     

rendering  all the corporeal1 and       
incorporeal property1 belonging to the  
subjects  of any state or sovereign1    
liable to the debts1 which that state or
  sovereign may have incurred1 either   
personally1 or by refusing to make  such
 reparation1 as may be due for the      
injuries and aggressions1 which  they   
have committed4    ,yet this is a       
practice1 which nothing but necessity   
could justify2 for1  on any other       
ground1 it would be opening a door to   
innumerable acts of  wanton aggression  
and injustice against individuals4 ,as  
the property of  states and sovereigns  
cannot often so easily fall into an     
enemy's hand1  as that belonging to     
individuals1 who are more numerous1 and 
whose  property is consequently more    
exposed4 ,so that rights of this kind   
are  to be reckoned among those1 which  
,justinian says1 are the offspring of   
stern necessity1 the calamities of men  
driving them to the use of such  means4 
,but though a practice like this owes   

its introduction to ,,necessity1 it  is 
not so far at variance with the law of  
nature1 as to exclude ,,custom  and     
,,tacit agreement from having some share
 in its establishment4 ,for we  find    
that sureties are bound by no other tie1
 but that alone of having  given their  
consent4 ,besides1 it might easily be   
supposed1 that it  was the best method  
of redress against the subjects of      
another state1  where the aggrieved     
persons could not so easily prosecute   
their rights1  or obtain indemnities1   
the claims or injuries of strangers     
being but  little understood1 and       
perhaps still less regarded in a foreign
 land4    ,subjects1 being thus liable  
to the loss of their property1 by the   
conduct of their fellow subjects1 or by 
that of the state1 might  sometimes feel
 it a hardship1 while on other          
occasions1 it would  prove their        
greatest security against aggressions   
from the subjects of  another power4    
,that this was a received custom appears

 not only from the regular  wars1       
carried on by one state against another1
 the rules observed in  which are often 
named in the manifestoes issued on such 
occasions3  the form of which may be    
seen in the first book of ,livy1 where  
it is  said1 ,i declare war against the 
ancient nations of the ,latins1 and     
likewise against the respective         
individuals2 and the same writer1 in    
his thirty first book1 informs us1 that1
 upon the question being put  to the    
people1 they were asked1 whether it was 
their pleasure that  war should be      
declared against ,philip1 and against   
the ,macedonians1  his subjects4--,but  
the same custom also prevailed1 even    
before the  commencement of actual and  
open hostilities between two states1    
when  mutual acts of aggression by the  
subjects of each power could be         
regarded as nothing but the eve1 and    
prelude to a declaration of war4  ,the  
words used by ,agesilaus to ,pharnabazus
 will serve to elucidate  this point3 he

 said2 ,while we were friends to the    
king of ,persia1 we  treated him and his
 subjects in a friendly manner3 now we  
are enemies1  you can expect nothing    
from us but hostilities4 ,therefore1    
,pharnabazus1  while you chuse to       
continue a vassal to the ,king1 we wound
 him through  your sides4    ,,iii4 ,the
 ,athenians had a method somewhat like  
this of seeking redress1  which they    
called  androlpsia1 a seizure of men's  
persons1  which was laid down in the    
,attic law in the following terms1 if   
any  one has been murdered in a foreign 
country1 the nearest relatives  of the  
deceased are authorized to seize any    
three subjects of that  country1 but not
 more than three1 till the perpetrators 
of the deed be  punished1 or at least   
delivered up to the hands of justice for
 that  purpose4    ,in this case we find
 that the personal liberty of subjects1 
which may  be considered as a kind of   
incorporeal right1 including the right  
of  residing where they please1 or doing

 whatever they may think proper1 is     
made answerable for the debt of the     
state1 who is bound to punish the       
criminal acts of her subjects3 so that  
the subject suffers constraint1  till   
the state has discharged the debt1 which
 it is bound to pay2 and  by the payment
 of this debt is meant the punishment of
 the guilty4 ,for  although the         
,egyptians1 as we learn from ,diodorus  
,siculus1 maintained  that neither the  
person1 nor liberty of any one ought to 
be bound or  constrained for a debt1    
there is nothing in it repugnant to the 
law  of nature1 and by the practice not 
only of the ,greeks1 but of other       
nations1 the opposite opinion seems to  
have been established4    ,aristocrates1
 who was contemporary with ,demosthenes 
had made a motion  for a decree1 that if
 any one killed ,charidemus1 it might be
 lawful  to seize him1 wherever he was  
to be found1 and that any one1 who      
attempted to rescue that person1 should 
be deemed an enemy4 ,demosthenes  finds 

fault with many parts of this decree4   
,for in the first place1  ,aristocrates 
had omitted making a proper distinction 
between murder and  a lawful putting to 
death1 the latter of which is an act of 
justice3  in the next place1 he has said
 nothing of bringing the person to a    
regular trial3 besides1 it was not the  
persons1 among whom the murder  had been
 committed1 but those who afterwards    
received the murderer1  that were to be 
declared enemies4 ,demosthenes says1    
that the regular  law prescribes1 that  
if the persons in whose district a      
murder has  been committed1 neither     
punish1 nor deliver up the perpetrator  
of the  crime1 three of their people    
shall be liable to be seized4 ,but this 
decree1 allowing the persons in whose   
district it has been committed to       
escape with impunity1 not even naming   
,,them1 passes sentence upon those1  who
 in conformity to the common laws of    
humanity have received the  fugitive1 if
 they do not deliver him up1 which would

 be a breach of the  protection due to a
 suppliant4    ,the fourth point1 in    
which he blames ,aristocrates1 is for   
having  carried matters to the          
extremities of open and actual war1 in a
 case1  where the law only authorized   
the seizure and detention of particular 
persons4 ,of these arguments1 the first1
 the second1 and the fourth1  are by no 
means destitute of weight4 ,but the     
third argument1 unless it  be confined  
entirely to the circumstance of         
accidental death1 or that  necessarily  
occasioned by defending one's self1 may 
be regarded more  as an oratorical      
flourish than a just and solid reason4  
,for the law of  nations extends the    
privileges1 and character of suppliants 
to those  only1 who have left their     
country on account of misfortune1 and   
not  owing to crimes4 ,indeed if the law
 of nations made no such distinction1   
the persons1 among whom a crime has been
 committed1 and who may be  suspected of
 having countenanced the deed1 and those

 who barely refuse  to punish or deliver
 up the guilty fugitive1 would be upon  
an equal  footing as to right4 ,so that 
it was either ,,usage1 which ,,gradually
  introduced the above interpretation of
 that law1 to which ,demosthenes        
appeals1 or it was afterwards more      
,,expressly ,,established1 in order  to 
avoid such cavils4 ,for no one can deny 
the truth of one of these  positions who
 has attended to the observation of     
,julius ,pollux1 that  the seizure and  
detainder of persons can be enforced1   
whenever a power  cannot obtain the     
surrender of fugitive murderers1 which  
they demand4  ,in this case the         
aggrieved power or individual may seize 
and detain any  three of the people     
belonging to the state1 which refuses to
 make that  surrender4    ,it is upon   
the same principle that any power may   
detain the subjects of  another state1  
in order to procure the release of any  
subjects of her  own1 unjustly seized1  
and imprisoned by that state4    ,,iv4  

,another method of obtaining redress for
 any violation of persons1  or property 
is by having recourse to what1 in modern
 language1 are  called ,,reprisals1     
which the ,saxons and ,angles           
denominated ,,withernam1  and to which  
the ,french gave the name of ,,letters  
,,of ,,marque1 and those  were usually  
obtained from the crown4    ,v4 ,it is  
generally understood that recourse may  
be had to this method  of redress not   
only against a foreign aggressor1 but   
also against a  debtor1 if justice      
cannot be obtained in due time3 but in  
,,notorious  cases1 which admit of no   
doubt1 this right may be enforced even  
beyond  the strict letter of the law4   
,for even in ,,doubtful matters1 the    
presumption will always be in favour of 
judges appointed by public  authority4  
,for it is unlikely that they should    
,,greatly1 or ,,wantonly  exceed their  
power2 especially when1 if so inclined1 
they have not the  same means of        
enforcing their decrees against         

foreigners1 as against  their fellow    
subjects4 ,indeed even in disputes      
between subjects of  the same country1  
they cannot annul a just debt4 ,,paulus1
 the ,lawyer1  says that a ,,real       
,,debtor1 though discharged1 owing to   
some informality  or inability of the   
law to enforce payment1 still remains a 
debtor  according to the law of nature4 
,and when1 in consequence of a judicial 
sentence1 a creditor1 under  pretext of 
seizing his own property1 had taken from
 a debtor something  which did not      
belong to him though it was in his      
possession3 upon the  discharge of the  
debt1 a doubt arising whether the thing 
should be  restored to the debtor1      
,scaevola maintained that it certainly  
ought to  be restored4    ,there is a   
difference between the two cases4 ,for  
subjects1 ,,as ,,such1  cannot make any 
violent resistance to the execution of a
 sentence1  which they may not deem     
satisfactory1 nor can they prosecute any
 right  in opposition to the law4       

,,foreigners may use violent means to   
enforce a  right3 tho' they are not     
justified in using such means1 while    
there is  any possibility of obtaining  
redress in a legal1 and peaceable       
manner4    ,it is on such grounds that  
reprisals are made upon the persons and 
property of the subjects1 belonging to a
 power1 who refuses to grant  redress   
and reparation for injuries and         
aggressions4 ,it is a practice  not     
literally enacted by the law of nature1 
but generally received  through custom4 
,it is a practice too of the greatest   
antiquity3 for in  the eleventh book of 
the ,iliad1 we find ,nestor giving an   
account of  the reprisals1 which he had 
made upon the ,epeian nation1 from whom 
he  took a great number of cattle1 as a 
satisfaction for a prize which his      
father ,neleus had won at the ,elian    
games2 and for debts due to many        
private subjects of the ,pylian kingdom4
 ,out of this booty the king  having    
selected his own due1 equitably divided 

the rest among the other  creditors4    
,,vi4 ,it has been a received opinion   
with many nations1 that reprisals  might
 be made even upon the ,,lives of       
innocent subjects1 owing to the  right1 
which it was supposed that every one had
 over his own life1  and which might be 
transferred from the individual to the  
state4 ,a  doctrine1 which1 as it was   
proved in the first book of this        
treatise1  can never be reconciled      
either to sound religion or morality4   
,indeed  a person may ,,accidentally1   
though not ,,intentionally be killed by 
us  in attempting to prevent him from   
violently obstructing us in the         
prosecution of a lawful right4 ,yet if  
such an accidental calamity could  be   
foreseen1 the law of charity1 setting so
 pre-eminent a value upon  the life of  
man1 would in such a case prescribe the 
forbearance of our  right4    ,,vii4    
,but on this1 as well as other points1  
we must take care not to  confound the  
natural and fundamental law of nations1 

with the civil and  conventional law of 
particular states4    ,by the law of    
nations all the permanent subjects1 both
 natives and  settlers1 of an offending 
state or sovereign are liable to suffer 
reprisals3 but the same rule does not   
bind those1 who are passing  through a  
country1 or only residing in it for a   
time4 ,for such  reprisals are a kind of
 pledges1 like public burdens1 made     
answerable  for the public debts1 from  
which foreigners1 being temporary       
residents1  though owing obedience to   
the laws1 are totally exempt4    ,in the
 same manner1 ,ambassadors1 but not     
those sent from an enemy to  our        
enemies1 and their property1 are exempt 
from such conditions by the  law of     
nations4 ,by the ,,civil ,,law too of   
many countries an exception is  made in 
favour of women and children1 of men of 
letters1 and those who  are travelling  
for the purposes of trade4 ,but by the  
law of ,,nations  the goods of all are  
liable to reprisals1 as was the case at 

,athens1  respecting the seizure of     
persons4 ,in many places1 by the civil  
law1  the right of making reprisals is  
obtained of the sovereign1 and in       
others1 of the judges4    ,by the law of
 nations the property of all captures is
 devoted to  discharge the debt1 and    
defray the expenses incurred1 the       
remainder of  which1 after due          
satisfaction obtained1 and peace        
concluded1 should  be restored4 ,by the 
civil law the persons interested are    
summoned  to appear1 the property is    
sold by public authority1 and the money1
  accruing from thence1 divided among   
all who are entitled to a share of  the 
same4 ,but these and other points of the
 same kind are to be learned  from      
civilians1 who are conversant in such   
matters1 and particularly  from         
,bartolus1 who has written upon         
reprisals4 ,this subject may be  closed 
with one observation1 that will in some 
measure tend to soften  the rigour of   
this stern1 but necessary right1 and    

that observation  is1 that such as by   
not discharging a debt1 or granting     
redress1 have  occasioned reprisals to  
be made1 are bound1 in justice and      
honour1 to  make good the losses of     
those1 who have thereby suffered4       
,,chapter ,,iii4    ,,on ,,just ,,or    
,,solemn ,,war ,,according ,,to ,,the   
,,law ,,of ,,nations ,,on ,,declarations
  ,,of ,,war4      ,solemn war1         
according to the ,law of ,nations       
between different      states--,a       
people1 though engaged in unjust war1 to
 be      distinguished from pirates and 
robbers--,change in the condition       
of belligerents--,formal war can be made
 by the ,sovereign power                
alone--,declaration of war--,the ,law of
 ,nature1 ,law of ,nations1             
respecting the same--,declaration1      
conditional1 absolute--,forms of        
declaration introduced by the civil     
law--,war declared against a            
,sovereign includes his subjects1 and   
allies--,the reason why allies      are 

included--,declarations1 why necessary  
to establish certain                    
effects--,whether actual warfare        
immediately follows a declaration1      
considered--,whether the violation of an
 ,ambassador's rights to be a      just 
ground of war4      ,i4 ,in the first   
book of this treatise it was observed1  
that according  to the best writers1 a  
war is defined to be just1 not on       
account of the  ,,causes solely1 in     
which it originates1 nor on account of  
the ,,magnitude  of its objects1 but    
from certain1 peculiar1 effects of      
right1 with  which it is attended4      
,but to what kind of war such an        
appellation most duly belongs will be   
best understood by considering the      
definition1 which the ,roman ,lawyers   
have given of a ,,public or ,,national  
enemy4 ,those1 says ,pomponius1 are     
,,public and ,,lawful ,,enemies1 with   
whose ,,state our own is engaged in war3
  but enemies of every other            
description1 come under the denomination

 of  pirates and robbers4 ,with that    
opinion ,ulpian entirely accords1 making
  an additional observation1 that if any
 one be taken by robbers1 as he  is not 
a lawful prisoner of war1 he cannot     
claim of his own state the  right of    
postliminium4 ,but if he be taken       
prisoner by a public enemy of  the      
state1 being considered as a prisoner of
 war1 he is entitled by the  right of   
postliminium to be restored to his      
former condition4    ,these opinions are
 supported by that of ,paulus1 who      
maintains1 that  persons captured by    
pirates still continue free1 that is1   
are not to  be considered as prisoners1 
for whom an exchange may be demanded4   
,so  that by the opinion of the ,roman  
,lawyers it is evident1 that no war  is 
considered to be lawful1 regular1 and   
formal1 except that which is  begun and 
carried on by the sovereign power of    
each country4 ,cicero1 in  his fourth   
,philippic1 describes a public and      
authorised enemy to be  the person1 who 

possesses the civil and military powers 
of the state1  who can command the      
treasury1 and the services of the people
 in support  of his measures1 and who1  
as occasions offer1 has power to        
conclude  treaties of peace and amity4  
,,ii4 ,a state1 though it may commit    
some act of aggression1 or injustice1   
does not thereby lose its political     
capacity1 nor can a band of pirates  or 
robbers ever become a state1 although   
they may preserve among  themselves that
 degree of subordination1 which is      
absolutely necessary  to the subsistence
 of all society4 ,for with the latter1  
the commission  of crime is the ,,sole  
bond of union1 whereas the former1      
though not  always free from blame1 but 
occasionally deviating from the laws of 
nature1 which in many cases have been in
 a great measure obliterated1  still    
regulate their conduct by the treaties1 
which they have made1  and certain      
customs that have been established1     
being united among  themselves for the  

mutual support of lawful rights1 and    
connected with  foreign states by known 
rules of standing polity4    ,the       
,scholiast1 upon ,thucydides1 remarks   
that the ,greeks1 at the time  when     
piracy was reckoned lawful1 forebore    
committing massacres1 or  nightly       
depredations1 and carrying off the oxen 
that were necessary  for the plough4 ,we
 are informed by ,strabo1 that other    
nations too1 who  lived by plunder1     
after they had returned home from their 
predatory  voyages1 sent messages to the
 owners1 whom they had plundered1 to    
know  if they would redeem the captures 
at a fair price4    ,in morals1 the     
whole system often derives its name from
 some one of the  principal parts1 as   
,cicero remarks1 in the fifth book of   
his ,,bounds  of ,,good and ,,evil1 and 
,galen observes that a mixture is often 
called  by the name of its chief        
ingredient4 ,so that ,cicero is not     
altogether  correct in saying1 that a   
state is not merely diseased1 but       

entirely  destroyed1 by the injustice of
 its component and leading members4 ,for
 a  morbid body is still a body1 and a  
state1 though dreadfully diseased1  is  
still a political being1 as long as its 
laws and tribunals and other  necessary 
parts of its constitution remain1 to    
administer justice and  give redress to 
foreigners1 no less than to private     
subjects in their  actions against each 
other4    ,there is a beautiful         
observation in ,dion ,chrysostom1 who   
compares the  law of a state1           
particularly that branch of it relating 
to the law of  nations1 to the body     
animated by the soul1 upon the departure
 of which  the corporeal frame becomes a
 mass of lifeless clay3 in the same     
manner  political society cannot subsist
 without the guiding and controuling    
principle of law4 ,aristides1           
encouraging the ,rhodians to harmony1   
observes1 that even under a tyrannical  
government many good laws may be  found4
    ,these are points1 which may be     

cleared up by examples4 ,thus ,ulpian   
maintains that those who are captured by
 pirates cannot be considered  as       
prisoners of war3 but if captured by the
 ,germans1 for instance1  or any        
national enemy1 they lose their liberty 
for a time4 ,but the  ,germans1 as we   
are informed by ,caesar1 thought acts of
 plunder1 if  committed in a foreign    
territory1 no disgrace4 ,tacitus says   
that the  ,cattians1 a noble race of    
people in ,germany1 and the             
,garamantians were  addicted to the same
 habits of plunder1 yet still retained  
their rank  among states4--,such is the 
difference between a national and       
political  body1 and a band of men      
uniting together ,,solely ,,for ,,the   
,,commission ,,of  ,,crimes4    ,,iii4  
,a change may occur not only in the     
situations of individuals1 as  in those 
of ,jephthah1 ,arsaces1 and ,viriatus1  
who1 from being leaders  of voluntary   
bands1 became lawful commanders2 but the
 same has also  happened with respect to

 whole communities1 which being         
originally  composed of nothing but     
freebooters have1 by the gradual course 
and  changes of time1 risen to the rank 
and dignity of states4    ,,iv4 ,what   
has been said with respect to the right 
of making formal and  lawful war1 being 
vested in the sovereign power alone1    
includes those  who have any share in   
the sovereign power1 as the different   
communities  forming the ,states        
,general of many commonwealths4 ,the    
same rule will  hold good of those1 who 
are not ,,subjects of a superior state1 
but  joined to it in confederacy by an  
unequal treaty3 innumerable instances   
of which are to be found in history4    
,this was the case between the  ,romans 
and their allies1 the ,volscians1 the   
,latins1 and the ,spaniards3  and all   
whom we read of being engaged in wars1  
which were considered as  lawful and    
just4    ,v4 ,but to make a war just1   
according to this meaning1 it must not  
only  be carried on by the sovereign    

authority on both sides1 but it must    
also be duly and formally declared1 and 
declared in such a manner1 as  to be    
known to each of the belligerent powers4
 ,cicero1 in the first  book of his     
offices1 points out the equity of the   
rules prescribed  by the ,roman ,law for
 the declaration of war1 from whence it 
may be  concluded that no war is regular
 or just1 but such as is undertaken to  
compel restitution1 and to procure      
indemnity for injuries1 and that too    
accompanied with a formal declaration4  
,livy also in the same manner  deems an 
observance of these rules requisite to  
form the characteristic  of a just war4 
,and describing an incursion of the     
,acarnanians into  ,attica1 and their   
ravaging the country1 he says that those
 acts of  irritation ended in a         
declaration of ,,just and ,,regular war 
on both  sides4    ,,vi4 ,in order to   
understand all these points clearly     
respecting the  declaration of war1 an  
accurate distinction must be made       

between the  principles1 which are      
founded on the law of nature itself1 and
 those1  which1 though not derived      
immediately from that source1 are still 
found  to be just3 it will be necessary 
also to examine1 what is required by    
the law of nations towards obtaining1   
,,in ,,war1 all the consequences1       
privileges and effects of that law1 and1
 at the same time1 to  investigate the  
consequences and rights arising from the
 peculiar laws  and customs of          
particular nations4    ,to repel force1 
or to punish a delinquent1 the law of   
nature requires  no declaration4 ,and1  
as ,thucydides relates1 ,sthenelaidas1  
one of the  ,ephori1 maintains that     
where we have been injured1 not by      
,,words1 but  by ,,actions1 the matter  
cannot be decided by ,,words and        
,,forms4 ,and  ,aelian1 after ,plato1   
observes that it is not the declaration 
of the  ,herald1 but the voice and law  
of nature1 which proclaim war1          
undertaken  to repel force4 ,hence ,dion

 ,chrysostom1 in addressing the         
,nicomedians1  says that many wars are  
begun without any declaration4    ,upon 
the same ground ,livy condemns the      
conduct of ,menippus1 a general         
belonging to ,antiochus for having      
killed some ,roman citizens before  any 
declaration of war had been made1 or    
even before a sword had  been drawn1 or 
a drop of blood spilt1 to shew that     
hostilities  were intended4 ,by this    
objection he proves that either a formal
  declaration1 or some act indicative of
 hostilities was deemed requisite  to   
justify actual warfare4    ,neither1 if 
we follow the law of nature1 is there   
any more occasion for  notice or        
declaration1 where an owner intends to  
lay hands upon ,,his  ,,own ,,property4 
,but whenever one thing is taken in     
return for another1  or the property of 
a debtor is seized for the recovery of a
 debt1 and1  especially1 if any one     
intends seizing the property of those1  
who are  subjects to the debtor1 a      

formal demand must be made1 as a proof  
that  recourse to such security is the  
only means left of obtaining redress    
and satisfaction4 ,such a demand is     
necessary because that is not a         
,,primary and ,,original right1 but a   
,,secondary right1 ,,substituted in the 
place of the primary and original1 by   
the artificial rules of civil law4      
,in the same manner to justify an attack
 upon a sovereign power for the         
aggressions and debts of its subjects1 a
 previous remonstrance1 and a  proper   
demand of justice must be made to that  
power4 ,for it is only by  refusing to  
punish the guilty1 or to grant indemnity
 to the injured1  that states or        
sovereigns can be implicated in the     
misconduct of their  subjects4#fj ,but  
even where the law of nature does not   
directly  prescribe that such a         
remonstrance or demand should be made1  
yet the  common principles of humanity  
and equity will recommend the#fa use  of
 any means1 that may prevent recourse to

 the calamities of war4 ,the            
commandment given by ,god to the        
,hebrews1 to send a message of peace to 
any state or city1 before they began an 
intended attack1 was designed  as a     
special command to that people1 yet some
 have confounded it with  the general   
law of nations4 ,for it was not ,,any   
kind of peace that was  meant by that   
injunction1 but only such a peace as    
imposed terms of  ,,subjection and      
,,tribute4 ,we are informed by          
,xenophon1 that when ,cyrus  went into  
the country of the ,armenians1 he sent  
messengers to the king1  to demand the  
tribute and number of troops1 which had 
been stipulated  by treaty4    ,but to  
obtain the peculiar rights and          
consequences resulting from the  law of 
nations1 a declaration of war by one of 
the parties1 at least1  if not by both1 
is absolutely requisite in all cases4   
,,vii4 ,those declarations are either   
conditional or absolute4 ,a  conditional
 declaration is that which is coupled   

with a demand of  restitution or        
redress4 ,under the name of restitution1
 the ,,fecial ,,law  of ,rome1 that is  
the ,,law ,,respecting ,,declarations   
,,of ,,war1 comprehended  not only the  
claims1 which ,,ownership established1  
but the prosecution  of ,,every right   
arising from criminal or civil causes4  
,hence the declarations were couched in 
terms1 requiring restoration1           
satisfaction1 or surrender4 ,here1 by   
the term1 surrender1 the party  appealed
 to is understood to have the option    
either of punishing the  offender1      
himself1 or delivering him up to the    
aggrieved person4 ,this  manner of      
demanding restitution is1 according to  
the testimony of  ,pliny1 called        
,,clarigation1 that is1 a ,,loud and    
,,formal ,,demand4 ,livy  gives us an   
example of a conditional and qualified  
declaration1 wherein  the aggrieved     
power denounces a determined resolution 
to prosecute  her rights with the utmost
 violence1 if the aggressor will not    

make  reparation and atonement for the  
injury he has done4 ,tacitus also       
relates the substance of a dispatch sent
 to ,caecina by ,germanicus1  wherein he
 declares1 that if the ringleaders of   
the mutinous and  rebellious legions are
 not immediately punished1 he will      
advance with  his army1 and put the     
whole to the sword4    ,an ,,absolute   
declaration of war is issued1 where any 
power has already  begun hostilities1 or
 committed acts which call for exemplary
  punishment4 ,sometimes indeed a       
conditional1 is followed by an absolute 
war1 though in such a case the latter is
 not actually necessary1 but  only a    
confirmation of the former4 ,this gave  
rise to the form1 which  says1 an appeal
 is hereby made against such a people1  
as unjust and  refusing to grant        
redress4 ,there is another form also    
purporting1  that the principal herald  
of the ,roman citizens has made known to
 the  principal herald of the ancient   
,latins1 and to the ,latin people1 that 

redress is demanded of them by just and 
lawful war1 on account of all  the      
disputes which they have refused to     
settle1 and the indemnities  which they 
have been bound to grant1 and have      
refused2 and that this  is the only     
means remaining to recover all that has 
been unjustly  detained4 ,there is also 
a third mode of declaration1 which runs 
in  the following tenour2 ,since the    
ancient people of the ,latins have      
committed aggressions against the people
 of ,rome1 the people of ,rome1  with   
the advice and consent of the senate1   
declare war against them1  and in the   
name of the senate and people of ,rome  
their purpose is thus  published4       
,but that in case of ,,renewed wars such
 a declaration is not absolutely        
necessary1 appears from the circumstance
 of its being made in due form  at the  
nearest garrison1 and not ,,personally  
to the offender himself1  according to  
the answer given by the heralds1 when   
they were consulted  in the case of     

,philip of ,macedon1 and afterwards     
respecting ,antiochus4  ,whereas a      
declaration for the ,,first time should 
be made to the enemy  himself4 ,indeed  
in the war against ,pyrrhus the         
declaration was made  to one of his     
soldiers1 in the ,flaminian ,circus1    
where1 as ,servius  observes in his     
notes on the sixth book of the ,aeneid1 
he was commanded  to purchase a piece of
 ground1 as a handle for dispute4 ,a    
proof also  that ,,in ,,some ,,cases a  
declaration is superfluous may be taken 
from the  circumstance that war is      
frequently declared by ,,both ,,sides1  
which was  done by the ,corcyraeans and 
,corinthians in the ,peloponnesian war1 
though a declaration by one of the      
parties would have been sufficient4     
,,viii4 ,as to the use of the caduceum1 
or staff with the figure of two  snakes 
twisted around it1 which ambassadors    
carried1 when they sued  for peace1 it  
was a ceremony peculiar to the ,,greeks1
 and not derived  from the ,,general law

 of nations4 ,the ,,romans in the same  
manner had  particular customs1 such as 
using vervain in forming alliances1     
throwing a bloody spear1 as a           
declaration of war1 renouncing all      
former friendship and alliance at the   
expiration of thirty days1 after        
satisfaction had been demanded and      
refused1 and again throwing another     
spear4 ,none of these ,,peculiar customs
 ought to be confounded with the        
,,general law of nations4 ,for ,arnobius
 informs us1 that in his time many  of  
them had fallen into disuse1 and even in
 the time of ,varro some of  them were  
omitted4 ,the third ,punic war indeed   
was not declared till the  moment of its
 actual commencement4    ,,ix4 ,a       
declaration of war1 made against a      
sovereign1 includes not only  his own   
subjects1 but all who are likely to     
become his associates1 as  thereby they 
make themselves accessories in the war4 
,and this is what  the modern lawyers   
mean1 when they say that1 in bidding    

defiance to  a ,prince1 we bid defiance 
to all his associates4 ,for they give   
the  name of defiance to a declaration  
of war4 ,by which is understood the  war
 carried on with the power against whom 
it has been declared4 ,thus  upon war   
being declared against ,antiochus1 there
 was no occasion for  a separate        
declaration against the ,aetolians1 who 
had openly joined  ,antiochus4 ,for1 as 
the heralds in their answer justly      
observed1 the  ,aetolians had1 by that  
act1 voluntarily brought war upon       
themselves4    ,x4 ,but if after the    
conclusion of such a war it should be   
deemed  expedient to attack any other   
nation or king for having furnished     
supplies and assistance towards that    
war1 a new declaration of war  will be  
necessary4 ,for that nation or king is  
then to be considered1  not as an       
accessory1 but as a principal enemy4    
,and therefore it was  with reason said1
 that the war of ,manlius against the   
,galatians1 and  that of ,caesar against

 ,ariovistus1 were not just wars        
according to the  law of nations4 ,for  
war was made upon them not as           
accessories1 but as  principals4 ,so    
that for this purpose1 as the law of    
nations would have  required a          
declaration1 in the same manner the     
,roman law would have  required a new   
order of the ,senate4    ,for on the    
motion being made for the war with      
,antiochus1 the question  was also put1 
whether it should not at the same time  
be made with his  adherents4 ,the same  
rule also being observed against ,king  
,perseus1 it  must be understood1 as    
including the adherents during all the  
time that  war with those princes       
continued2 and implicating all1 who in  
reality  gave them support4    ,,xi4    
,the reason why a declaration is        
necessary to constitute what is  deemed1
 according to the law of nations1 a just
 war1 is not that which  some writers   
assign4 ,for they allege that it is to  
prevent every  appearance of clandestine

 and treacherous dealing3 an openness1  
which  may be dignified with the name of
 magnanimity1 rather than entitled a    
matter of right4 ,on this point1 we are 
informed that some nations have  gone so
 far1 as to settle and make known the   
very time and place of a  general       
engagement4    ,but waving all          
conjecture1 a more satisfactory reason  
may be found in  the necessity that it  
should be known for ,,certain1 that a   
war is not  the ,,private undertaking of
 bold ,,adventurers1 but made and       
sanctioned  by the ,,public and         
,,sovereign authority on both sides2 so 
that it is  attended with the effects of
 binding all the subjects of the        
respective  states2--and it is          
accompanied also with other consequences
 and rights1  which do not belong to    
wars against pirates1 and to civil wars4
    ,,xii4 ,there is much truth indeed  
in the observations1 which some have    
made1 and which they have produced      
examples to confirm1 that even in  wars 

of this kind all captures become the    
lawful prize of the captors4    ,yet    
this is only partially true1 and that   
too1 according to the law  of nature1   
and not according to the voluntary law  
of nations4 ,for the  latter only makes 
provision to secure the rights of       
nations1 as ,,whole  communities1 and   
not of those1 who1 as in civil wars1    
form but ,,one ,,part  of a nation4     
,the same writers are mistaken too in   
the supposition that defensive  wars    
require no declaration4 ,for it is no   
less necessary to shew by  way of       
vindication that it is a defensive war1 
and at the same time  by public         
declaration to give it the character of 
a national and  lawful war1 in order to 
establish those rights and consequences1
 that  have been already mentioned1 and 
which will hereafter be more fully      
explained4    ,,xiii4 ,they maintain    
another position also1 which is by no   
means  true1 and that is1 that a power  
ought not ,,immediately to follow up  a 

declaration of war with actual          
hostilities1 as ,cyrus did to the       
,armenians1 and the ,romans to the      
,carthaginians4 ,for the law of nations 
requires the intervention of no         
,,definite time between the declaration 
and the commencement of war4    ,there  
may indeed be some cases1 where natural 
justice will render such  a delay       
proper4 ,thus1 for instance1 where      
reparation for injury1 or  the          
punishment of aggressors is demanded1 it
 is but reasonable to wait  till it can 
be known1 whether the just demand will  
be complied with or  rejected4    ,,xiv4
 ,in order to establish the same        
consequences1 a declaration will  be    
equally necessary too1 where the rights 
of ,ambassadors have been  violated4    
,yet it will be sufficient for it to be 
made in the manner1  in which it may be 
done with the greatest safety4 ,as in   
many other  matters1 in places which    
afford no security1 satisfaction is     
demanded  by denunciation or summons4   

,,chapter ,,iv4    ,,on ,,the ,,right   
,,of ,,killing ,,an ,,enemy ,,in        
,,lawful ,,war1 ,,and ,,committing      
,,other  ,,acts ,,of ,,hostility4       
,general explanation of the effects of  
formal war--,distinction between        
lawful and innocent impunity--,merit of 
the latter--,examples      added to     
explain it--,general effects of former  
war considered      with respect to     
lawful impunity--,the reason of their   
introduction--,historical               
testimonies--,by this right all persons1
      found within an enemy's territory1
 objects of hostility--,also all        
going thither before the war--,the      
subjects of an enemy liable to      be  
seized everywhere1 except protected by  
the laws of a neutral                   
territory--,case of women and           
children--,case of prisoners--,of those 
whose voluntary offer of surrender is   
rejected--,unconditional                
surrender--,retaliation--,obstinate     
defence--,hostages4      ,i4 ,servius in

 his comment on the passage of ,virgil1 
where that poet  says that war will     
authorise mutual acts of destruction and
 rapine1  in tracing the fecial or      
herald's law to ,ancus ,martius1 and    
even beyond  him to a still more remote 
period1 remarks that1 if ever the       
persons  or property of subjects1       
belonging to the ,roman state1 were     
seized  and carried off by any other    
nation1 the principal ,herald1 or ,king 
at  arms went out with the sacred       
ministers1 who presided at the making of
  solemn treaties1 and proceeding to the
 verge of the territories of the        
offending nation1 declared with a loud  
voice the cause of the war1 and  the    
refusal of that nation either to restore
 what had been seized1 or  to deliver up
 the aggressors to justice4 ,after this 
he threw a spear to  indicate that war  
and all its consequences were from that 
moment begun4    ,the commentator had   
previously observed that the ancients   
gave the name  of rapine to every act of

 hostility even where there was no act  
of  plunder committed2 and they likewise
 called every kind of restitution a     
satisfaction4    ,by this explanation we
 learn that whenever war is proclaimed  
between  two states or sovereigns1 it is
 accompanied with certain rights or     
consequences1 which do not ,,necessarily
 belong to war itself4 ,and this  is    
perfectly conformable to the examples   
from the ,roman ,lawyers1 which  have   
been before produced4    ,,ii4 ,but it  
will be proper to consider how far the  
lawfulness1 which  ,virgil speaks of1   
extends4 ,for the term lawful sometimes 
implies  whatever is just and pious in  
all respects1 although the pursuit of  a
 different course may perhaps be more   
laudable3 according to the  expression  
of ,st4 ,paul1 who says1 all things are 
lawful to me1 but  all things are not   
expedient4 ,ulpian is speaking of a     
seller1 who1 at  the expiration of a    
certain period1 is not answerable for   
the safety  of goods1 which a buyer has 

neglected to take away1 says he1 will   
yet  think himself bound in ,,equity to 
preserve them with all imaginable  care4
 ,on some occasions when it is said1    
that men may ,,lawfully do a  thing1 the
 expression only means that doing such  
act will not subject  them to human and 
legal penalties1 but it by no means     
indicates  that the action is strictly  
conformable to the rule of religion and 
morality4 ,thus among the               
,lacedaemonians and ,egyptians stealing 
was  allowed3 an indulgence that by no  
means took away the ,,guilt of theft4   
,cicero in the fifth of his ,tusculan   
questions1 speaking of ,cinna1          
beautifully and justly points out this  
abuse of the word1 ,,lawful4 ,he  seems 
to me1 says he1 a wretched man indeed   
for having done those  acts1 and for    
having been in a situation1 where they  
might be thought  lawful4 ,it can never 
be lawful for any man to do wrong3 but  
we fall  into a great mistake in the use
 of that word3 for we consider a thing  

to be lawful1 which any one may do with 
impunity4 ,this is the meaning1  in     
which the term is generally understood1 
as the same orator1 in  addressing the  
judges in behalf of ,rabirius           
,posthumus1 observes1 it  behoves you to
 consider1 what is becoming your        
character1 and not what  the rigour of  
the law allows you to inflict4 ,for if  
you consult the  full extent of your    
authority1 you may make away with any   
citizen you  please4    ,in the same    
manner legislators1 as it was proved in 
a former book of  this treatise1 are not
 accountable1 in their legislative      
capacity1 to  any human tribunal1 for   
the laws1 which they make1 yet they     
cannot1 in  a moral point of view1 avail
 themselves of this transcendent power  
to  enact a thing that is evidently     
unjust4 ,in this sense we often meet    
with a distinction made between what is 
proper or right1 and what is  lawful4   
,thus ,cicero1 in his speech for ,milo1 
makes the ,,law ,,of ,,nature  the      

standard of what is ,,right1 and ,,legal
 ,,authority1 the standard of  what is  
lawful4    ,,iii4 ,thus qualified1 the  
annoyance of an enemy1 either in his    
person or  property1 is lawful4 ,this   
right extends not only to the power     
engaged  in a just war1 and who in her  
hostilities confines herself within  the
 practice established by the law of     
nature1 but each side without           
distinction has a right to employ the   
same means of annoyance4 ,so that  any  
one taken in arms1 even in another's    
territory1 cannot be treated  as a      
robber1 malefactor1 or murderer1 nor can
 even that neutral power1  in whose     
territory he is taken1 treat him as an  
enemy1 for being found  in arms4        
,,iv4 ,this principle was established by
 nations to prevent others from         
interfering in their disputes1 or giving
 the law to them respecting the  rights 
of war4 ,besides1 if this were not the  
case1 neutral powers would  frequently  
be involved in the wars of others4 ,a   

reason which the people  of ,marseilles 
urged in the dispute between ,caesar and
 ,pompey4 ,they  alleged that they had  
neither sufficient judgment to determine
 on which  side justice lay1 nor1 if    
they could determine1 had they strength 
to  give effect to their decisions4     
,a spectator indeed is but ill qualified
 to judge1 how far1 even in  the most   
just war1 self-defence1 the attainment  
of indemnity1 or the  punishment of an  
aggressor1 may be carried4 ,these are   
points1 which1  on many1 if not most1   
occasions must be left to the conscience
 and  discretion of the belligerents    
themselves3 a mode far preferable to    
that of appealing to the mediation1 and 
decision of disinterested  and neutral  
powers4 ,livy has given an address of   
the ,achaeans to the  senate1 in which  
they ask1 how their availing themselves 
of the rights  of war can ever be fairly
 called in question1 or made a subject  
of  discussion8    ,besides the impunity
 attending certain actions done in war1 

the  acquisition of territory by the    
right of conquest is another topic of   
consideration1 which will hereafter be  
examined4    ,v4 ,the lawfulness of     
injuring or destroying the person of a  
public  enemy is supported by the       
testimony of many of the best writers1  
both  poets1 moralists1 and historians4 
,in one of the tragedies of ,euripides1 
there is a proverb1 which says1 that to 
kill a public enemy1 or an  enemy in war
 is no murder4 ,therefore the custom of 
the ancient  ,greeks1 which rendered it 
unlawful and impious to use the same    
bath1  or to partake of the same        
festivities and sacred rites with a     
person  who had killed another in time  
of peace1 did not extend to any one who 
had killed a public enemy in war4       
,killing an enemy is indeed everywhere  
called a right of war4 ,the rights of   
war1 says ,marcellus in ,livy1  support 
me in all that ,i have done against the 
enemy4 ,and the same  historian gives   
the address of ,alcon to the            

,saguntines1 where he says1  ,you ought 
to bear these hardships1 rather than    
suffer your own bodies  to be mangled1  
and your wives and children to be seized
 and dragged  away before your eyes4    
,cicero in his speech in defence of     
,marcellus  passes a high encomium upon 
the clemency of ,caesar1 who1 by the    
laws  of war and the rights of victory1 
might have put to death all1 whom  he   
had spared and protected4 ,and ,caesar  
observes to the ,eduans1 that  it was an
 act of kindness in ,,him1 to spare     
those whom the laws of war  would have  
authorised him to put to death4    ,but 
the rights of war1 for which these      
writers plead1 could not  ,,perfectly   
,,justify the putting prisoners to      
death1 but could only grant  ,,impunity 
to those who availed themselves of the  
barbarous custom4 ,there  is a wide     
difference however between actions like 
these1 and destroying  an enemy by      
proper means of hostility4 ,for1 as     
,tacitus says1 in the  leisure hours of 

peace the merits and demerits of every  
case may be  examined and weighed1 but1 
in the tumult and confusion of war1 the 
innocent must fall with the guilty3 and 
the same writer1 in another  place1     
observes1 that there are many actions1  
which the principles  of humanity cannot
 ,,entirely approve1 but which the      
policy of war  requires4 ,and it is in  
this1 and no other sense that ,lucan has
 said1  the complexion of right may be  
assigned to what is wrong4    ,,vi4     
,this right of making lawful what is    
done in war is of great extent4  ,for in
 the first place it comprises1 in the   
number of enemies1 not only  those who  
actually bear arms1 or who are          
immediately subjects of the  belligerent
 power1 but even all who are within the 
hostile territories1  as appears from   
the form given by ,livy1 who says1 that 
war is declared  against the sovereign1 
and all within his jurisdiction4 ,for   
which a  very good reason may be        
assigned2 because danger is to be       

apprehended  even from ,,them1 which1 in
 a continued and regular war1           
establishes the  right now under        
discussion4    ,reprisals do not come   
exactly under the same rule4 ,for like  
taxes1  they were introduced for the    
discharge of public debts1 for no part  
of which temporary residents1 or        
foreigners are answerable4 ,therefore   
,baldus is right in his observation1    
that1 after war is actually begun1  much
 greater latitude is allowed1 than in   
the bare right of making  reprisals4 ,so
 that what is said of foreigners1 who   
enter into an  enemy's country1 and     
reside there1 after war is avowedly     
declared and  begun1 is undoubtedly     
true4    ,,vii4 ,but persons1 who had   
gone to reside there before the war was 
begun1 seem by the law of nations to be 
included in the number of  enemies1     
unless within a reasonable time they    
chuse to withdraw4 ,so  that the        
,corcyraeans1 when going to besiege     
,epidamnus1 gave leave to  all strangers

 to withdraw1 denouncing that they would
 otherwise be  treated as enemies4      
,,viii4 ,but the persons of natural-born
 subjects1 who owe permanent  allegiance
 to a hostile power may1 according to   
the law of nations1 be  attacked1 or    
seized1 wherever they are found4 ,for   
whenever1 as it was  said before1 war is
 declared against any power1 it is at   
the same time  declared against all the 
subjects of that power4 ,and the law of 
nations  authorises us to attack an     
enemy in every place3 ,an opinion       
supported  by most legal authorities3   
thus ,marcian says that deserters may be
  killed in the same manner as enemies1 
wherever they are found4 ,they  may be  
lawfully killed there1 or in their own  
country1 in the enemy's  country1 in a  
country belonging to no one1 or on the  
sea4 ,but as to  the unlawfulness of    
killing1 or violently molesting them in 
a neutral  territory1 this protection   
does not result from any personal       
privileges  of ,,their ,,own1 but from  

the rights of the ,,sovereign of that   
country4  ,for all civil societies had  
an undoubted right to establish it as a 
standing maxim that no violence should  
be offered to any person within  their  
territories1 nor any punishment         
inflicted but by due process of  law4   
,for where tribunals retain their       
authority in full vigour1 to try  the   
merits of every offence1 and1 after     
impartial inquiry1 to acquit  the       
innocent1 or condemn the guilty1 the    
power of the sword must be  restrained  
from inflicting promiscuous death4      
,livy mentions the circumstance of seven
 ,carthaginian gallies riding  at anchor
 in a port belonging to ,syphax1 who was
 then at peace with  the ,carthaginians 
and ,romans4 ,scipio arrived at that    
time1 with two  gallies1 which might    
have been attacked and sunk by the      
,carthaginians1  before they could enter
 the port3 a brisk wind rising carried  
them in1  before the ,carthaginians     
could weigh anchor2 but out of respect  

to the  king's authority they durst not 
attack the ,romans in his harbour4      
,,ix4 ,but to return to the subject1    
which is1 to decide how far the  power  
of lawfully destroying an enemy1 and all
 that belong to him1  extends4 ,an      
extent of which we may form some        
conception from the very  circumstance1 
that even women and children are        
frequently subject to  the calamities   
and disasters of war4 ,there is no      
occasion to allege  in this place1 as an
 example1 the conduct of the ,hebrews1  
who slew  the women and children of the 
,heshbonites1 and who were commanded to 
execute vengeance upon the ,canaanites1 
and upon all1 who were involved  in the 
same guilt4 ,those examples1 where ,god 
,,manifestly interposes his  commands1  
are not to be drawn into a precedent for
 authorising actions  of the ,,same kind
 on ,,different occasions4 ,for the     
supreme and disposing  power of ,god can
 never properly be compared with that1  
which men are  allowed to exercise over 

each other4 ,the ,psalmist's expression 
of the  ,babylonian children being      
dashed against the stones is a much     
stronger  proof of the custom commonly  
prevailing among nations1 in the use of 
victory1 to which the language of ,homer
 bears a close resemblance1  where the  
poet says1 that in the cruel rage of    
war1 even the bodies of  infant-children
 were dashed against the ground4        
,thucydides relates1  that when         
,mycalessus was captured by the         
,thracians1 they put all1  even women   
and children to the sword4 ,arrian      
relates the same of  the ,macedonians1  
when they took the city of ,thebes4 ,and
 ,germanicus  ,caesar1 according to the 
account of ,tacitus1 laid waste whole   
cantons  of the ,marsians1 a people of  
,germany1 with fire and sword1 to which 
the historian adds1 without sparing     
either age or sex4 ,the ,jewish  women  
and children too were exposed by ,titus1
 to be torn to pieces by  wild beasts at
 a public spectacle4 ,yet neither of    

those generals were  thought deficient  
in humanity1 so much had custom         
reconciled the minds  of men to this    
barbarous usage4 ,so that the massacre  
of the aged1 like  that of ,priam by    
,pyrrhus1 is no way surprising4    ,x4  
,the right of putting prisoners of war  
to death1 was so generally  received a  
maxim1 that the ,roman ,satirist has    
founded an adage upon  it1 and said1    
that when you can sell a prisoner for a 
slave1 it would  be absurd to kill him4 
,words which imply the full power of    
doing so1  if the captor thought proper4
 ,the commentators indeed assign the act
  of saving1 as the derivation of the   
,latin word1 servus1 a slave4  ,thus    
,thucydides speaks of the prisoners     
taken at ,epidamnus1 and killed  by the 
,corcyraeans1 and ,hannibal is reported 
to have massacred five  thousand        
prisoners at once4 ,nor was this power  
limited by the law of  nations to any   
particular time1 though it was          
controuled by greater  restrictions in  

some places1 than in others4    ,,xi4   
,besides many examples occur of         
suppliants1 being killed4 ,both  ancient
 poets and historians relate such       
actions1 as ordinary  practices1        
authorised by the laws of war4 ,augustin
 commends the ,goths  for sparing       
suppliants1 who had fled to churches for
 refuge1 and adds  by way of comment1   
that they deemed it unlawful to avail   
themselves of  the power1 which had     
usually been allowed by the laws of war4
    ,nor did those who offered to       
surrender always experience the lenity  
and mercy1 which they sought thereby4   
,tacitus relates1 that when the  city of
 ,uspes was invested1 the besieged sent 
a deputation with offers  of an         
immediate surrender1 and of no less than
 ten thousand slaves1  on condition that
 the free-born should remain unhurt4    
,the terms were  rejected--,a proof that
 such a rejection was thought           
conformable to the  rights of war4      
,,xii4 ,but even after an unconditional 

surrender1 we find that those1 who  had 
capitulated were sometimes put to the   
sword4 ,in this manner the  princes of  
,pometia were treated by the ,romans1   
the ,samnites by ,sylla1  the ,numidians
 and ,vercingetorix by ,caesar4 ,it was 
almost a standing  practice with the    
,romans to crown their triumphs with the
 death of  an enemy's generals1 whether 
made prisoners actually in the field1   
or by capitulation4 ,cicero notices this
 custom in his fifth speech  against    
,verres4 ,livy may be consulted on this 
point in many parts of  his history1    
particularly in the twenty-eighth book3 
and ,tacitus also  in the #abth book of 
his ,annals4 ,the latter writer1 in the 
first book  of his ,,history1 relates   
that ,galba ordered every tenth man of  
those1  whom he had1 upon their earnest 
supplication1 admitted to surrender1  to
 be beheaded3 and ,caecina1 after the   
capitulation of ,aventicum1  punished   
,julius ,alpinus1 one of the leading    
men1 with death1 as a  chief promoter of

 the war1 leaving the rest to the mercy 
or cruelty of  ,vitellius4    ,,xiii4   
,historians sometimes account for this  
right of putting enemies  to death1     
especially prisoners1 or suppliants1    
either on the score  of retaliation1 or 
for obstinate resistance4 ,these may    
sometimes be  the real1 but cannot be   
the ,,justifiable motives of such       
proceedings4  ,for the law of           
retaliation1 strictly and properly so   
called1 must be  directly enforced upon 
the person of the delinquent himself4   
,whereas1  in war1 what is called       
retaliation frequently redounds to the  
ruin of  those1 who are no way          
implicated in the blame4 ,the general   
consequences  of war are thus described 
by ,diodorus ,siculus1 they could not be
  ignorant1 says he1 having learnt from 
experience1 that all being  involved in 
the common fortune of war1 they are     
liable on both sides in  defeat1 to     
suffer the same calamities1 which they  
themselves would have  inflicted upon   

the conquered party4    ,but as the     
,neapolitans reply to ,belisarius1 in   
,procopius1 no one can be  thought      
deserving of punishment for a resolute  
adherence to the side  on which he is   
engaged1 especially when actuated by    
natural and just  motives in his choice 
of that side4 ,so far from incurring    
guilt by such  a resolution1 it is on   
the other hand more criminal for any one
 to  desert his post3 and so it was     
judged by the military laws of ancient  
,rome4 ,livy says1 it was a capital     
offence1 for which no fear of danger    
could be pleaded as an excuse4 ,so that 
in the rigid application of  this right1
 ,,owing ,,to ,,its ,,importance1 every 
one is left to use his own  discretion1 
and there may be times and              
circumstances1 in which the law  of     
nations will justify its full exertion4 
,,xiv4 ,the same right was exercised    
upon hostages also1 not only upon  those
 who had bound themselves1 as it were1  
by convention1 but even  upon those1 who

 had been delivered up by others4 ,two  
hundred and fifty  hostages were once   
massacred by the ,thessalians1 and the  
,volsci ,aurunci  to the amount of three
 hundred by the ,romans4 ,it is to be   
observed  that children were sometimes  
given1 as hostages1 which we find was   
done by the ,parthians1 and by ,simon1  
who was one of the ,maccabees4 ,and  in 
the times of ,porsena it was usual to   
deliver women1 as hostages3 a  practice1
 which1 as ,tacitus informs us1 was     
followed by the ,germans4    ,,xv4 ,as  
the law of nations permits many things1 
in the manner above  explained1 which   
are not permitted by the law of nature1 
so it  prohibits some things which the  
law of nature allows4 ,thus spies1 if   
discovered and taken1 are usually       
treated with the utmost severity4 ,yet  
there is no doubt1 but the law of       
nations allows any one to send spies1   
as ,moses did to the land of promise1 of
 whom ,joshua was one4    ,persons of   
that description may sometimes be       

,,lawfully employed by  those1 who are  
engaged in an ,,evidently just war4     
,others too1 who have  not such evident 
proofs of the justice of their cause1   
may plead the  rights of war as a       
vindication for employing such persons4 
,but if any are to be found1 who disdain
 to avail themselves of such  a         
privilege1 or opportunity1 no argument  
either ,,for1 or ,,against the          
,,lawfulness of employing spies can be  
drawn from their conduct1 which         
proceeds rather from a nobleness of     
mind1 and a confidence in open          
strength1 than from any decided opinion 
upon the subject4          ,,chapter ,v4
    ,,on ,,the ,,right ,,to ,,lay       
,,waste ,,an ,,enemy',s ,,country1 ,,and
 ,,carry ,,off ,,his ,,effects4    ,an  
enemy's property may be wasted and      
plundered--,things deemed sacred1  how  
far exempted--,stratagem1 how far       
permitted4      ,i4 ,cicero1 in the     
third book of his offices1 has said that
 there is  nothing repugnant to the     

,,law ,,of ,,nature in spoiling the     
effects of an  enemy1 whom by the same  
law we are authorized to kill4          
,wherefore it is  not surprising that   
the same things should be allowed by the
 ,,law ,,of  ,,nations4 ,polybius1 for  
this reason1 in the fifth book of his   
history1  maintains1 that the laws of   
war authorise the destruction of an     
enemy's  forts1 harbours1 and fleets1   
the seizure of his men1 or carrying off 
the produce of his country1 and every   
thing of that description4 ,and we  find
 from ,livy that there are certain      
rights of war1 by which an enemy  must  
expect to suffer the calamities1 which  
he is allowed to inflict1  such as the  
burning of corn1 the destruction of     
houses1 and the plunder  of men and     
cattle4 ,almost every page of history   
abounds in examples  of entire cities   
being destroyed1 walls levelled to the  
ground1 and  even whole countries wasted
 by fire and sword4 ,even in cases of   
surrender1 towns have sometimes been    

destroyed1 while the inhabitants  were  
spared--an example of which is given by 
,tacitus1 in the taking of  ,artaxata by
 the ,romans2 the inhabitants opened    
their gates and were  spared1 but the   
town was devoted to the flames4    ,,ii4
 ,nor does the law of nations1 in       
itself1 considered apart from other     
duties1 which will be mentioned         
hereafter1 make any exemption in favour 
of things deemed sacred4 ,for when      
places are taken by an enemy1 all       
things without exception1 whether sacred
 or not1 must fall a sacrifice4  ,for   
which it is assigned as a reason1 that  
things which are called  sacred1 are not
 actually excepted from all human uses1 
but are a kind  of public property1     
called sacred indeed from the general   
purposes1 to  which they are more       
immediately devoted4 ,and as a proof of 
this1 it is  usual1 when one nation     
surrenders to another state or          
sovereign1 to  surrender1 along with    
other rights1 every thing of a sacred   

kind1 as  appears by the form cited from
 ,livy in a former part of this         
treatise4    ,and therefore ,ulpian     
says1 that the public have a property in
 sacred  things4 ,conformably to which  
,tacitus says1 that in the ,italian     
towns  all the temples1 the images of   
the ,gods1 and every thing connected    
with religion belonged of right to the  
,roman people4 ,for this reason  a      
nation1 as the ,lawyers1 ,paulus and    
,venuleius openly maintain1 may1  under 
a change of circumstances1 convert to   
secular uses things1 that  have before  
been consecrated3 and an overruling     
necessity may justify  the hand1 which  
has formerly consecrated the object in  
employing it as  one of the resources   
and instruments of war4 ,a thing which  
,pericles  once did under a pledge of   
making restitution3 ,mago did the same  
in  ,spain1 and the ,romans in the      
,mithridatic war4 ,we read of the same  
actions done by ,sylla1 ,pompey1        
,caesar1 and others4 ,plutarch in his   

life  of ,tiberius ,gracchus says that  
nothing is so sacred and inviolable1  as
 divine offerings3 yet no one can hinder
 these from being removed  or applied to
 other purposes at the pleasure of the  
state4 ,thus ,livy  mentions the        
ornaments of the temples1 which         
,marcellus brought from  ,syracuse to   
,rome1 as acquisitions made by the right
 of war4    ,,iii4 ,what has been said  
of sacred things and edifices applies   
also to  another kind of solemn fabrics1
 and those are sepulchral structures1   
which may be considered not merely as   
repositories of the dead1 but as        
monuments belonging to the living1      
whether families or states4 ,for this   
reason ,pomponius has said1 that these1 
like all other sacred places1  when     
taken by an enemy may lose their        
inviolability1 and ,paulus is of  the   
same opinion1 observing that we are not 
restrained by any religious  scruple    
from using the sepulchres of an enemy3  
for the stones1 taken  from thence1 may 

be applied to any other purpose4 ,but   
this right does  not authorise wanton   
insult1 offered to the ashes of the     
dead4 ,for that  would be a violation of
 the solemn rights of burial1 which1 as 
it was  shewn in a preceding part of    
this work1 were introduced and          
established  by the law of nations4     
,,iv4 ,here it may be briefly observed1 
that1 according to the law of  nations  
any thing1 belonging to an enemy1 may be
 taken not only by open  force1 but by  
stratagem1 provided it be unaccompanied 
with treachery4          ,,chapter ,,vi4
    ,,on ,,the ,,acquisition ,,of       
,,territory ,,and ,,property ,,by       
,,right ,,of ,,conquest4      ,law of   
nature with respect to the acquisition  
of things captured      in war--,law of 
nations on the same subject--,in what   
cases the      law of nations confirms  
the capture of things moveable--,lands  
acquired by conquest--,lawful prize     
cannot be made of things not            
belonging to an enemy--,goods found on  

board an enemy's ships--,law      of    
nations authorises the making prize of  
what an enemy has taken      from others
 in war--,sovereigns may acquire        
possession and dominion      through    
those employed by them--,acts of        
hostility divided into      public and  
private--,territory may be acquired by a
 sovereign or      people--,private and 
public captures                         
explained--,discretionary      power of 
generals in this respect--,prizes belong
 either to the      treasury1 or to     
those1 who take them--,places sometimes 
given up      to be plundered by the    
soldiery--,different methods of dividing
      spoils--,peculation1 a portion of 
the spoils sometimes given      to      
allies1 who have supported the          
war--,sometimes given up to             
subjects--,this illustrated by          
examples--,utility of the above         
practices--,whether things taken without
 the territory of either of      the    
belligerent powers can be acquired by   

the rights of war--,in      what manner 
this right peculiarly applies to solemn 
wars4      ,i4 ,besides the impunity    
allowed to men for certain actions1     
which  have been mentioned before1 there
 are other consequences and effects1    
peculiar to the law of nations1         
attending solemn and formal war4 ,the   
law of nature indeed authorises our     
making such acquisitions in a just  war1
 as may be deemed an equivalent for a   
debt1 which cannot otherwise  be        
obtained1 or as may inflict a loss upon 
the aggressor1 provided it  be within   
the bounds of reasonable punishment4    
,according to this right1  as we find in
 the fourteenth chapter of ,genesis1    
,abraham devoted to ,god  a tenth part  
of the spoils1 which he had taken from  
the five kings3  and the inspired writer
 in the seventh chapter of his ,epistle 
to the  ,hebrews gives the same         
interpretation of this passage4 ,in the 
same  manner the ,greeks too1 the       
,carthaginians1 and the ,romans1 devoted

 a  tenth portion of the spoils of war  
to their deities4 ,jacob1 in making  a  
particular bequest to ,joseph above his 
brethren1 says1 ,i have given  to thee  
one portion above thy brethren1 which ,i
 took out of the hand  of the ,amorite  
with my sword1 and with my bow4 ,in this
 place1 the  expression1 ,i ,,took1 is  
used according to the prophetic style1  
where  an event1 that will for certain  
take place1 is spoken of in the past    
time1 and an action is here attributed  
to ,jacob1 which some of his            
descendants were to perform1 supposing  
the progenitor and his children  to be  
the same person4    ,nor is it upon     
conjecture alone that such a right is   
founded1 but the  divine law giver      
himself pronounces sentence against a   
city that has  rejected the offers of   
peace1 and afterwards been taken by     
storm1 that  he gives all her spoils to 
the conqueror4    ,,ii4 ,but according  
to the law of nations1 not only the     
person1 who makes  war upon just        

grounds2 but any one whatever1 engaged  
in regular and  formal war1 becomes     
absolute proprietor of every thing which
 he takes  from the enemy3 so that all  
nations respect his title1 and the title
  of all1 who derive through him their  
claim to such possessions4 ,which1  as  
to all foreign relations1 constitutes   
the true idea of dominion4  ,for1 as    
,cyrus1 in ,xenophon observes1 when the 
city of an enemy is  taken1 every thing 
that is taken therein becomes a lawful  
prize to the  conquerors2 and ,plato1 in
 his treatise on laws asserts the same4 
,cicero  in his speech against ,rullus  
says that ,mitylene belonged to the     
,roman  people by the laws of war1 and  
the right of conquest2 and1 in the first
  book of his offices1 he observes1 that
 some things become the private         
property of those1 who take possession  
of them1 when unoccupied1 or  of those1 
who make a conquest of them in          
war4--,theophilus1 in his  ,greek       
institutes1 calls the one the natural   

mode of acquisition1 and  ,aristotle    
denominates the other the natural way of
 acquisition by the  sword1 without     
regarding any other reason1 but the bare
 fact1 from  which the right arises4    
,thus ,nerva1 the son1 as ,paulus the   
lawyer  relates1 said that property     
arose from natural possession1 some     
traces  of which still remain respecting
 wild animals taken either upon the     
sea1 or upon the land1 or birds flying  
in the air4 ,it is seen also in  things 
taken in war1 all which immediately     
become the property of the  first       
captors4 ,now things are considered as  
taken from an enemy1 when  taken from   
his subjects4    ,thus ,dercyllides     
argues1 in ,xenophon1 that as           
,pharnabazus was an enemy  to the       
,lacedaemonians1 every thing belonging  
to ,mania1 who was his  subject1 might  
be seized by the laws of war4    ,,iii4 
,but in this question upon the rights of
 war nations have decided1  that a      
person is understood to have made a     

capture1 when he detains  a thing in    
such a manner1 that the owner has       
abandoned all probable  hopes of        
recovering it1 or1 as ,pomponius1       
speaking on the same subject1  says1    
when a thing has escaped beyond pursuit4
 ,this takes place with  respect to     
moveable things in such a manner1 that  
they are said to be  taken1 when they   
are carried within the territories of   
the enemy1 or  places belonging to him4 
,for a thing is lost in the same manner 
as it  is recovered by postliminium4 ,it
 is said to be recovered whenever it    
returns within the territories of its   
owner's sovereign1 that is1 into        
places1 of which he is master4 ,paulus  
indeed has expressly said1 that  a power
 or state has lost a subject1 when he   
has gone1 or been carried  out of the   
territories of that power3 and          
,pomponius defines a prisoner  of war to
 be an enemy1 whom the troops of some   
other belligerent power  have taken and 
carried into one of their own places2   

for before he is  carried into those    
places1 he continues still a subject of 
the enemy4    ,the law of nations1 in   
these respects1 treated persons and     
things in  the same manner4 ,from whence
 it is easy to understand1 what is      
meant1  when in another place it is said
 that things taken from an enemy        
immediately become the lawful prize of  
the captors1 but only upon  the         
condition of those things continuing in 
their possession for a  reasonable and  
certain time4 ,consequently it is plain1
 that ships and  other things taken at  
sea cannot be considered as really the  
property  of the captors1 till they have
 been carried into some of their ports1 
or to some place where their whole fleet
 is stationed4 ,for in that case  all   
hope of recovery seems to have vanished4
 ,by a late regulation among  the       
,european powers1 it has been made an   
established maxim of the law  of        
nations1 that captures shall be deemed  
good and lawful1 which have  continued  

in the enemy's possession for the space 
of twenty-four hours4    ,,iv4 ,lands   
are not understood to become a lawful   
possession and absolute  conquest from  
the moment they are invaded4 ,for       
although it is true1  that an army takes
 immediate and violent possession of the
 country  which it has invaded1 yet that
 can only be considered as a temporary  
possession1 unaccompanied with any of   
the rights and consequences  alluded to 
in this work1 till it has been ratified 
and secured by some  durable means1 by  
cession1 or treaty4 ,for this reason1   
the land without  the gates of ,rome1   
where ,hannibal encamped1 was so far    
from being  judged entirely lost1 that  
it was sold for the same price that it  
would  have been sold for before that   
period4    ,now land will be considered 
as completely conquered1 when it is     
inclosed or secured by permanent        
fortifications1 so that no other  state 
or sovereign can have free access to it1
 without first making  themselves       

masters of those fortifications4 ,on    
this account ,flaccus1  the ,sicilian1  
assigns no improbable conjecture for the
 origin of the  word territory1 because 
the enemy is ,,deterred from entering   
it4 ,at  least there is as much         
probability in this conjecture1 as in   
that of  ,varro1 who derives it from the
 word terendo1 treading the soil4       
,frontinus deduces it from terra1 the   
earth1 and ,pomponius from the  ,,terror
 of judicial authority exercised in each
 country4 ,xenophon  however in his book
 on tributes1 seems to accord with the  
first of  these opinions3 for he says1  
that in time of war the possession of a 
country is kept by walls1 strong holds1 
and barriers4    ,v4 ,it is a clear     
point too1 that for any thing to become 
a prize or  conquest by the right of    
war1 it must belong to an enemy4 ,for   
things1  within an enemy's territory1   
for instance1 in any of his towns or    
garrisons1 cannot be acquired as        
property by the laws of war1 if  the    

owners of those things are neither      
subjects nor confederates of  the enemy4
 ,it is observed in one of the speeches 
of ,aeschines1 that  ,philip1 though at 
war with the ,amphipolitans1 could not  
lawfully  take possession of            
,amphipolis1 as a conquest1 it being a  
city1 which  belonged to the ,athenians4
 ,for as the enemy is likely to derive  
no  assistance in the war1 from things  
which neither belong to himself1  nor to
 a confederate1 no just reason can be   
assigned for taking them1  and the right
 of making things change their owners by
 force is of too  odious a nature to    
admit of any extension4    ,,vi4 ,the   
observation usually made1 that all      
things on board an enemy's  ships are to
 be deemed an enemy's goods1 ought not  
to be received as  a ,,standing and     
,,acknowledged rule of the law of       
nations1 but only as a  maxim1          
indicating the strong presumption that  
both goods and vessel  belong to the    
same owner1 unless clear proof to the   

contrary can be  brought4 ,the ,states  
,general of ,holland made such a        
decision in the  year #acch1 at a time  
when the war with the ,hanse-towns raged
 with the  greatest violence1 and the   
decision consequently passed into a law4
    ,,vii4 ,according to the law of     
nations it is undoubtedly true1 that    
things taken from an enemy which had    
been captured by him cannot be  claimed 
by those1 to whom they belonged before  
they were in the enemy's  possession1   
and who had lost them in war4 ,because  
the law of nations  assigned them to the
 enemy by the first capture1 and then to
 the  person1 who took them from him by 
the second4    ,upon this principle     
among others1 ,jephthah defends himself 
against the  ,ammonites1 because by the 
laws of war they had lost the land1     
which  they claimed1 in the same manner1
 as another part had been transferred   
from the ,moabites to the ,amorites1 and
 from the ,amorites to the  ,hebrews4   
,thus ,david too claims and divides as  

his own1 what he himself  had taken from
 the ,amalekites1 and the ,amalekites1  
before him1 from the  ,philistines4     
,titus ,largius1 as we are informed by  
,dionysius of ,halicarnassus1 when  the 
,volscians laid claim to some           
possessions1 which they had formerly    
held1 delivered it as his opinion in the
 ,roman ,senate1 that the ,romans  were 
the fair and just owners of what they   
had gained by the right of  conquest1   
nor ought they to be so weak as to      
abandon the fruits of  their valour4    
,for not only the people of that day1   
but their posterity  also had a right to
 a share of those possessions3 so that  
to abandon  them would be treating      
themselves like enemies4    ,,viii4 and 
,,ix4 ,one great point1 which the law of
 nations designed to  establish1 was    
that the effects or possessions of one  
enemy should be  considered by another1 
as things having no owner4    ,things1  
belonging to no one1 became the property
 of those1 who find or  take them1 both 

of those1 who1 like sovereign powers1   
employ others in  such service1 and of  
those1 who take them with their own     
hands4    ,thus not only slaves1 or the 
immediate members of a man's household1 
but all1 who engage themselves1 any way1
 in the service of others1 may  be said 
to acquire for their employers all the  
property1 which they  take or gain1 even
 in those things1 which apparently lie  
in common to  all men1 such as pearls1  
fish1 or fowl4    ,modestinus has justly
 said1 that whatever is naturally       
gained1 like a  possession1 we may      
acquire through the means of any one we 
chuse to  employ1 and1 upon the same    
principle1 ,paulus observes1 that in    
every  acquisition1 the exertion of mind
 and body must concur2 the former       
purely our own1 and the latter1 either  
our own1 or that of another4  ,in the   
same manner possession may be taken for 
us by an attorney1  guardian1 or        
trustee1 provided they do it on our     
account and in our  name4 ,the reason of

 which is1 because one man may naturally
 be the  voluntary instrument of        
another1 with the consent of that other4
  ,so that the distinction made between 
persons in a servile and free           
condition1 as to the acquisition of     
property1 is a distinction only of  the 
civil law1 and applicable to its rules  
of transferring1 acquiring1  and        
confirming1 property4 ,and yet the      
emperor ,severus afterwards  applied    
these rules to the natural acquisition  
of things1 not only from  motives of    
utility1 but1 as he avowed himself1 from
 motives of equity  and justice4 ,so    
that1 apart from all authority of the   
civil law1 it is  an established maxim  
that what any one can do for himself1 he
 can do  through means of another1 and  
doing such acts by another is the same  
as  doing them himself4    ,x4 ,a       
distinction must be made between actions
 in war1 that are  really of a ,,public 
,,nature1 and the acts of ,,individuals1
 occasioned  by public war3 by the      

latter1 individuals acquire an absolute 
and  direct property1 in the things1    
which they take1 and by the former1  the
 state makes those acquisitions4 ,upon  
this principle of the law of  nations   
,scipio treated with ,masinissa1 stating
 that as it was under  the auspices of  
the ,roman people1 that ,syphax was     
conquered and taken  prisoner1 himself1 
his wife1 his kingdom1 his territory1   
his towns1  and subjects inhabiting     
those towns1 in short1 every thing      
belonging  to him became a lawful prize 
to the ,roman people4 ,in the same      
manner1  ,antiochus the ,great          
maintained that ,coelo-,syria belonged  
to ,seleucus1  and not to ,ptolemy1     
because ,seleucus had been the principal
 in the war1  to which ,ptolemy had     
contributed his assistance4 ,in the     
fifth book of  ,polybius1 there is an   
account of the matter4    ,,xi4 ,things 
immoveable are generally taken by some  
public act1 such as  marching an army   
into the country1 or placing garrisons  

there4 ,so that1  as ,pomponius has     
said1 lands taken from the enemy become 
the property  of the state1 and form no 
part of the booty belonging to the      
individual  captors4 ,thus among the    
,hebrews and ,lacedaemonians1 lands that
 were  made a conquest1 were divided by 
lot4 ,the ,romans too either retained   
conquered lands to let them out for     
rent1 sometimes leaving a small  portion
 to the ancient possessor1 or divided   
them among colonists1  whom they sent   
out1 or made them tributary2 innumerable
 instances of  which we meet with in    
their histories1 their laws1 and        
treaties on the  admeasurements of      
lands4    ,,xii4 ,but things moveable1  
whether inanimate1 or living1 are taken 
either as connected or unconnected with 
the public service4 ,when  unconnected  
with the public service1 they become the
 property of the  individual captors4#fb
    ,reference may here be made to the  
remark of ,celsus1 that enemy's  goods  
found among us do not belong to the     

state1 but to the prior  occupant4 ,by  
which are meant things found among us at
 the breaking out  of a war4 ,for the   
same was observed of persons1 when1     
under the same  circumstances1 they were
 considered as goods taken4    ,on this 
subject there is a remarkable passage in
 ,tryphoninus4 ,those  persons1 says he1
 who have gone into a foreign country in
 time of  peace1 upon the sudden        
breaking out of war1 are made slaves by 
those1  among whom it is their          
misfortune to be found1 being considered
 as  enemies4    ,,xiii4 ,what has been 
said upon the law of nations1 allowing  
individuals  to acquire property by     
taking it from an enemy1 must be        
understood as  meaning the law of       
nations1 prior to the regulations of    
civil laws  upon that point4 ,for the   
capture of an enemy's goods which at    
first  appear to resemble things in     
common1 which any one may seize1 is now1
  like that of wild birds or beasts1    
subject to limitation by the laws  of   

every state1 being in some cases        
assigned to the sovereign1 and in       
others1 belonging to the captors4 ,it   
may in some countries1 indeed1 be       
introduced as a rule of law for the     
whole of an enemy's goods found  there  
to be confiscated4    ,,xiv4 ,the case  
is very different respecting what any   
one takes in  actual engagements4 ,for  
there every individual bears the        
character of  his country1 acting in her
 stead1 and supporting her rights4      
,through  the exertions of those        
individuals1 the state acquires both    
property  and dominion1 with a power1   
according to the principles of civilized
  countries1 of conferring them on whom 
she pleases4    ,this is not a practice 
of modern date1 but one prevailing among
 the  most free and independent nations 
of remote antiquity4 ,the poets1  and   
historians of those days1 describe the  
hero1 after the heat1 the  burden1 and  
dangers of the day1 carrying his spoils 
to the common  stock1 to be divided by  

the ,general among the army1 after      
retaining his  proper share to himself4 
,,xxiii4#fc ,it is observed by legal    
authorities to be a custom1 which  has  
silently gained ground1 for either      
allies or subjects1 who engage  in war1 
without pay1 and at their own risque and
 expence1 to be  rewarded with the      
captures that they make4    ,the reason1
 why allies have such a privilege1 is   
evident4 ,because one  ally is naturally
 bound to another to repair the losses1 
which he has  sustained by entering into
 a mutual agreement to support a common 
cause4 ,besides it seldom happens1 that 
services are given without some         
consideration in return4    ,quintilian1
 applying the same reasoning to another 
case1 alleges that  it is but just for  
orators and advocates1 who devote their 
whole  time and talents to the business 
of others1 to be requited for their     
services3 as thereby they preclude      
themselves from acquiring gain in  any  
other way4    ,it is most likely        

therefore that some advantage gained    
from the enemy  is always expected1 as a
 compensation for the loss and risque   
incurred1  unless there is evidence to  
the contrary from some antecedent       
treaty1  in which there is an express   
stipulation for gratuitous assistance   
and  services4    ,,xxiv4 ,such claim to
 a share of the spoils is not equally   
evident1  where ,,subjects ,,only are   
concerned4 ,for the state has a ,,right 
,,to ,,their  ,,services4 ,still where  
,,all are not engaged in arms1 but only 
,,some1  those1 who give up their time  
to the calling of soldiers1 and expose  
their lives to its hazards1 have a right
 to be rewarded and supported  by the   
body politic3--and as a compensation for
 this loss of time1 and  this personal  
danger1 it is but reasonable they should
 have a share of  the spoils4    ,with  
respect to allies there is an example in
 the ,roman treaty1 in  which the       
,latins are admitted to an equal share  
of the spoil1 in those  wars1 which were

 carried on under the auspices of the   
,roman people4    ,thus in the war1     
which the ,aetolians carried on with the
 assistance  of the ,romans1 the lands  
and cities were ceded to the ,aetolians1
 and  the prisoners and moveable effects
 were given to the ,romans4 ,after  the 
defeat of king ,ptolemy1 ,demetrius gave
 part of the spoils to the  ,athenians4 
,ambrose1 in speaking of the expedition 
of ,abraham1 shews the  equity of this  
practice4 ,he asserts that it was but   
just for those1 who  had assisted him as
 partners in the danger1 to share in the
 prizes1  which were their due reward4  
,as to what were the privileges of      
subjects in these respects1 we have a   
proof in the conduct of the ,hebrews1   
among whom it was usual for half  of the
 spoils to be given to those1 who were  
engaged in battle4 ,in  the same manner 
the soldiers of ,alexander were allowed 
to appropriate  to themselves whatever  
they took from individuals1 except that 
it was  usual for a considerable portion

 to be set apart for the king4 ,so that 
it was made a subject of accusation     
against those at ,arbela1 who were  said
 to have entered into a conspiracy for  
securing to themselves every  thing that
 was taken1 without contributing a due  
proportion of it to  the treasury4      
,but individuals were not allowed in the
 same manner to appropriate to          
themselves the public property of an    
enemy1 that is1 such as belonged  to the
 state4 ,thus when the ,macedonians made
 themselves masters of the  camp of     
,darius at the river ,piramus1 and every
 thing was given up to  plunder1 they   
spared the royal pavilion1 in conformity
 to an ancient  custom1 according to    
which1 as ,curtius observes1 it was     
always  reserved as the properest place1
 in which the victorious prince could   
be received4    ,there was a custom     
somewhat like this among the ,hebrews   
who always  placed the crown of the     
vanquished king upon the head of the    
conqueror1  and assigned to him every   

thing that was taken1 belonging to the  
royal  household4 ,we read of the same  
conduct in ,charles the great1 who1 upon
  conquering the ,hungarians1 gave up   
the private property as plunder to  the 
soldiers1 reserving for the royal use   
all the public treasures4    ,some      
things indeed are too inconsiderable to 
be made public property4  ,it is a      
generally received maxim for such things
 to belong to the  individual           
captors4#fd    ,this was the practice in
 the ancient times of the ,roman        
republic4 ,a  privilege not unlike this 
is sometimes given to seamen1 who serve 
for  pay4 ,it is what the ,french call  
spoils1 or pillage1 including all       
wearing apparel1 and all gold and silver
 under the value of ten crowns4    ,on  
this point different customs prevail in 
different countries4 ,in  ,spain        
sometimes a fifth1 and sometimes a third
 was allowed to the  soldiers1 and at   
others half was reserved for the crown4 
,on some  occasions1 a seventh or tenth 

part was allowed to the general1 and    
the rest belonged to the captors1 except
 ships of war1 which belong  entirely to
 the crown4--,sometimes a division was  
made in proportion to  the hazard and   
expence3 which was the case among the   
,italians1 where  the third part of the 
prize was assigned to the owner of the  
victorious  vessel1 another third to    
those who had merchandise on board1 and 
the  remaining third to the combatants4 
,in some cases it happens that private  
adventurers are not allowed the  whole  
of their captures1 a certain portion of 
which must go to the  state or to those1
 who have received a grant of such      
prizes from the  state4 ,thus in ,spain1
 if in time of war ships are fitted out 
by private  persons1 one part of the    
captures1 which they make belongs to the
  crown1 and another to the ,lord ,high 
,admiral4 ,so likewise in ,france1 and  
,holland1 the tenth part of a prize     
belonged to the ,admiral1 a fifth  also 
being previously deducted for the use of

 the state4 ,but by land  it is         
customary upon the taking of towns1 and 
in battles1 for every  one to keep the  
prizes which he takes4 ,but in          
excursions1 every thing  taken becomes  
the common stock of all engaged1 being  
afterwards divided  amongst them        
according to their respective ranks4    
,,xxv4 ,as a consequence deducible from 
the above positions1 it may be          
observed1 that if a people not engaged  
in war be made mediators in a  doubtful 
matter respecting things captured in    
war1 the cause must be  adjudged in     
favour of him1 who has on his side the  
laws and customs of  the country1 which 
he has espoused4 ,but if no such right  
can be proved1  the prize must be       
adjudged to the state1 rather than to   
the individual  captor4--,the maxim     
indeed of ,quintilian can never be      
admitted1 that  the laws of war can     
never be enforced in matters1 that may  
be decided  by judicial authority2 and  
that1 on the other hand1 whatever has   

been  gained by arms can be maintained  
by force of arms alone4    ,,xxvi4 ,it  
was observed in a former part of this   
chapter1 that things1  ,,not ,,belonging
 to an enemy1 cannot be taken1 although 
found with him4  ,for this is neither   
consonant to natural justice1 nor       
introduced by  the law of nations4 ,but 
if in those things the enemy had any    
right  connected with possession1 such  
as the right of pledge1 retention or    
service1 that would not obstruct the    
power of the captors4    ,it is a       
disputed point1 both as to persons and  
things1 whether they can  be lawfully   
taken in the territory of a power at war
 with neither of  the belligerents4 ,in 
regard ,,only to the law of nations1 as 
far as it  allows us to kill an enemy   
wherever he is found1 the ,,place has   
nothing  to do with the question4 ,but  
considering the rights of the sovereign1
  to whom that territory belongs1 he    
undoubtedly has a right to forbid  the  
seizure of persons1 or the capture of   

things within his own  dominions3 and   
may demand satisfaction for the         
violation of that right4  ,in the same  
manner1 though beasts1 that are wild by 
nature1 become the  property of those1  
who take them1 still an owner may forbid
 any one to  commit a trespass upon his 
lands in order to take them4            
,,chapter ,,vii4    ,,on ,,the ,,right  
,,over ,,prisoners ,,of ,,war4      ,by 
the law of nations1 slavery the result  
of being taken in solemn      war--,the 
same condition extends to the           
descendants of those      taken--,the   
power over them--,even incorporeal      
things may be gained      by the rights 
of war--,reason of this--,this right not
 prevalent to      the same extent among
 ,christian powers of the present       
day--,the      substitute used in place 
of this right4      ,i4 ,by the law of  
nature1 in its primaeval state2 apart   
from human  institutions and customs1 no
 men can be slaves3 and it is in this   
sense  that legal writers maintain the  

opinion that slavery is repugnant to    
nature4 ,yet in a former part of this   
treatise1 it was shewn that there  is   
nothing repugnant to natural justice1 in
 deriving the origin of  servitude from 
human actions1 whether founded upon     
compact or crime4    ,but the law of    
nations now under consideration is of   
wider extent both  in its authority over
 persons1 and its effects4 ,for1 as to  
persons1  not only those1 who surrender 
their rights1 or engage themselves  to  
servitude1 are considered in the light  
of slaves1 but all1 who  are taken      
prisoners in public and solemn war1 come
 under the same  description from the   
time that they are carried into the     
places1 of  which the enemy is master4  
,nor is the commission of crime         
requisite to reduce them to this        
condition1 but the fate of all is alike1
 who are unfortunately taken  within the
 territories of an enemy1 upon the      
breaking out of war4    ,,ii4 and ,,iii4
 ,in ancient times1 while slavery was   

permitted to exist1  the offspring1 born
 during captivity or servitude1         
continued in the  same condition as the 
parents4--,the consequences of such     
rules were of  wide extent2--there was  
no cruelty1 which masters might not     
inflict  upon their slaves2--there was  
no service1 the performance of which    
they  might not compel2--the power even 
of life and death was in their hands4   
,however the ,roman laws at length set  
bounds to such wanton power1 at  least  
to the exercise of it within the ,roman 
territories4    ,every thing too1 found 
upon the prisoner's person1 became a    
lawful  prize to the captor4 ,for as    
,justinian observes1 one who was        
entirely in  the power of another could 
have no property of his own4    ,,iv4   
and ,v4 ,incorporeal rights1 gained by  
the enemy1 along with the  person so    
captured1 cannot be considered in the   
light of primary and  original          
acquisitions4 ,and there are some rights
 so purely personal  in their nature1   

that they cannot be lost even by        
captivity1 nor the  duties attached     
thereto ever be relinquished4 ,of such a
 nature was the  paternal right among   
the ,romans4 ,for rights of this kind   
cannot exist  but immediately with the  
person to whom they originally belonged4
    ,all these rights to prizes1 which  
were introduced by the law of  nations1 
were intended as an inducement to       
captors to refrain from  the cruel      
rigour of putting prisoners to death2 as
 they might hope  to derive some        
advantage from sparing and saving them4 
,from hence  ,pomponius deduces the     
origin of the word1 ,,servus1 or        
,,slave1 being one1  who might have been
 put to death1 but from motives of      
interest or  humanity had been saved4   
,,vi4 7being the ,,ix4 of the original47
 ,it has long been a maxim1  universally
 received among the powers of           
,christendom1 that prisoners  of war    
cannot be made slaves1 so as to be sold1
 or compelled to the  hardships and     

labour attached to slavery4 ,and they   
have with good  reason embraced the     
latter principle4 ,as it would be       
inconsistent with  every precept of the 
law of charity1 for men to refuse       
abandoning a  cruel right1 unless they  
might be allowed to substitute another1 
of  great1 though somewhat inferior     
rigour1 in its place4    ,and this1 as  
,gregoras informs us1 became a          
traditionary principle  among all who   
professed one common religion2 nor was  
it confined  to those1 who lived under  
the authority of the ,roman empire1 but 
prevailed among the ,thessalians1 the   
,illyrians1 the ,triballians1 and       
,bulgarians4--,though such an abolition 
of slavery1 and mitigation of  captivity
 may be considered as of trivial import1
 yet they were effects  produced by the 
introduction of the ,christian religion1
 especially upon  recollection that     
,socrates tried1 but without effect1 to 
prevail upon  the ,greeks to forbear    
making slaves of each other4    ,in this

 respect the ,mahometans act towards    
each other in the same  manner as       
,christians do4 ,though it is still the 
practice among  ,christian powers to    
detain prisoners of war1 till their     
ransom be paid1  the amount of which    
depends upon the will of the ,conqueror1
 unless  it has been settled by express 
treaty4 ,the right of detaining such    
prisoners has sometimes been allowed to 
the individuals1 who took them1  except 
where the prisoners were personages of  
extraordinary rank1 who  were always    
considered as prisoners of war to the   
state4          ,,chapter ,,viii4       
,,on ,,empire ,,over ,,the ,,conquered4 
,civil and sovereign jurisdiction       
acquired by conquest--,effects      of  
such acquisition--,absolute power or    
mixed power gained      by              
conquest--,incorporeal rights acquired  
in the same      manner--,thessalian    
bond considered4      ,i4 ,if           
individuals can reduce each other to    
subjection1 it is not  surprising that  

states can do the same1 and by this     
means acquire  a civil1 absolute1 or    
mixed1 dominion4 ,so that1 in the       
language of  ,tertullian1 victory has   
often been the foundation of dominion1  
and it  often happens1 as ,quintilian   
remarks1 that the boundaries of states  
and  kingdoms1 of nations and cities1   
can only be settled by the laws of war4 
,quintus ,curtius relates of ,alexander1
 that he said1 it was for  conquerors to
 dictate laws1 which the conquered were 
bound to receive4  ,this has always been
 a general opinion and rule1 thus       
,ariovistus1 in  ,caesar1 laid it down  
as an indubitable right of war1 for the 
conqueror  to impose whatever terms he  
pleased upon the conquered1 nor did he  
suppose the ,roman people would allow   
any one to interpose with them in  the  
discretionary use of this right4    ,by 
conquest1 a prince succeeds to all the  
rights of the conquered  sovereign or   
state2 and if it be a commonwealth1 he  
acquires all the  rights and privileges1

 which the people possessed4 ,he gains  
the same  right1 which the state had    
before1 to alienate the possessions1 or 
to  transmit them if he chuses to his   
descendants1 by which means they will   
become a patrimonial territory4    ,,ii4
 ,the right of conquest may go even     
beyond this4 ,a state may hereby  lose  
its political existence1 so far as to   
form an appendage to another  power1    
which was the case with the ,roman      
provinces3 or if a king  engaged in war 
against a state1 at his own expence1 has
 reduced it to  complete subjection1 his
 authority over it becomes an absolute1 
rather  than a limited sovereignty4 ,it 
can no longer be called an independent  
state1 but1 by the right of conquest1   
forms an integral part of the  prince's 
immediate dominions4 ,xenophon in       
drawing the character of  ,agesilaus1   
commends him for requiring no other     
services and obedience  of the cities he
 had conquered1 than what is usually    
paid by subjects  to their lawful       

sovereigns4    ,,iii4 ,from hence it    
will be easy to understand what is meant
 by a mixed  government1 composed partly
 of civil1 and partly of absolute       
power2--it  is a government1 where      
subjection is united with some degree of
  personal liberty4    ,we sometimes    
read of nations1 that have been so far  
subdued1 as to be  deprived of the use  
of all warlike arms1 being allowed to   
retain no  instruments of iron1 but the 
implements of husbandry2 and of others1 
that have been compelled to change their
 national customs and language4    ,,iv4
 ,states as well as individuals may lose
 their property by the laws  of war3 and
 even a voluntary surrender is in       
reality nothing more  than giving up    
what might have been taken by force4    
,for as ,livy says1  where all things   
submit to the power of arms1 the        
conqueror may impose  whatever terms1   
and exact whatever fines he pleases4    
,thus the ,roman  people by the         
victories of ,pompey acquired all the   

territories1 which  ,mithridates had    
gained by conquest4    ,the incorporeal 
rights too1 belonging to one state1 may 
pass to another  by the rights of       
conquest4 ,upon the taking of ,alba1 the
 ,romans retained  all the rights       
belonging to that city4 ,from hence it  
follows1 that the  ,thessalians were    
released from the obligation of paying a
 sum of money1  which they owed to the  
,thebans2 ,alexander1 upon the taking of
 ,thebes1  having1 as a conqueror1      
forgiven the debt4 ,nor is the argument 
used by  ,quintilian in favour of the   
,thebans1 at all convincing3 he         
maintains  that nothing but what is of a
 tangible nature can pass by right of   
conquest1 a class of things to which    
incorporeal rights can never be         
reduced3 and that there is a material   
difference between inheritance  and     
victory1 the former of which may convey 
incorporeal rights1 but the  latter can 
give nothing except things of a solid   
and visible substance4    ,but on the   

other hand it may be justly said1 that  
whoever is master of  the persons1 is   
master also of all the rights and       
things1 which are  vested in those      
persons1 who are in that case considered
 as having  nothing of their own4       
,indeed if any one should leave to a    
conquered  people their rights1 as a    
state1 still there are some things      
belonging  to that state1 which he might
 appropriate to himself4 ,for it is in  
his  own power to determine1 to what    
extent his generosity1 or the exertion  
of his right shall go4 ,caesar imitated 
the conduct of ,alexander1 in  forgiving
 the ,dyrrachians a debt1 which they    
owed to some one of the  opposite party4
 ,but the kind of war1 in which ,caesar 
was engaged does  not fall within the   
rules of the law of nations4            
,,chapter ,,ix4    ,,of ,,the ,,right   
,,of ,,postliminium4      ,origin of the
 term1 postliminium--,where it takes    
effect--,certain      things recoverable
 thereby--,in what cases the right of   

postliminium      prevails in peace1 as 
well as war--,what rights are           
recoverable1      and what rights not   
recoverable--,when a people is not      
entitled      to the right of           
postliminium--,extent of civil law in   
these      cases--,deserters--,ransomed 
prisoners--,subjects--,lands recovered  
by      right of                        
postliminium--,distinction formerly     
observed with respect      to movable   
things--,modern practice4      ,i4 ,the 
professors of law in former ages have   
given no more satisfactory  account of  
the rights of postliminium1 than they   
have done of those1  respecting things  
taken from the enemy4 ,the subject has  
been more  accurately handled by the    
ancient ,romans1 but often still with a 
considerable degree of confusion1 so    
that a reader cannot easily             
distinguish1 what part they assign to   
the province of the law of  nations1 and
 what part to the civil law of ,rome4   
,amidst a great variety of opinions1    

upon the meaning of the word1           
postliminium1 that of ,scaevola seems   
the most natural1 who derives it  from  
the word post1 signifying a return after
 captivity1 and limen  the boundary or  
entrance of the house1 or from limes1 a 
public  boundary4 ,thus the ancients    
called exile or banishment1 eliminium1  
that is1 sending any one out of the     
boundaries of the country4    ,,ii4     
,postliminium therefore1 according to   
its original signification1  means the  
right1 accruing to any one in           
consequence of his return  home from    
captivity4 ,pomponius defines the right 
of postliminium to  take place the      
moment any one enters a town or         
garrison1 of which his  sovereign is    
master2 but according to ,paulus he must
 have entered  within the territories of
 his own country before he can be       
entitled to  that right4    ,upon this  
principle nations have1 in general1 gone
 so far1 as to allow  the right of      
postliminium to take place1 where any   

person1 or indeed  any thing1 coming    
within the privileges of postliminium1  
have arrived  within the territory of a 
friendly or allied power4    ,by the    
term friends1 or allies1 used in this   
place1 are not simply  meant1 those who 
are at peace with another power1 but    
those who are  engaged in the same war1 
and in a common cause with that power4  
,so that  all1 who have come into the   
territories of such powers1 are         
protected  under the pledge of public   
faith4 ,for it makes no difference with 
respect to persons or things1 whether   
they are in the territories of  those   
powers1 or in their own4    ,in the     
territory of a friendly power1 who is   
not engaged in the same  cause with     
either of two belligerent parties1      
prisoners of war do not  change their   
condition1 unless it has been agreed to 
the contrary  by express treaty2 as in  
the second treaty between the ,romans   
and  ,carthaginians1 it was stipulated  
that if any prisoners1 taken by the     

,carthaginians from powers friendly to  
the ,romans1 should come into  ports    
subject to the ,roman people1 their     
liberty might be claimed3  and that     
powers friendly to the ,carthaginians   
should enjoy the same  privilege4 ,for  
this reason1 the ,roman prisoners taken 
in the second  ,punic war1 when sent    
into ,greece1 had not the right of      
postliminium  there1 the ,greeks being  
entirely neutral1 consequently they     
could not  be released1 till they were  
ransomed4    ,,iii4 ,according to the   
language of the ancient ,romans1 even   
free men  might be restored by the right
 of postliminium4    ,gallus lius1 in   
the first book of his explanation of    
law-terms1  defines a person restored to
 his original situation by the right of 
postliminium1 to be one1 who had gone   
from his own country1 in a free         
condition1 to another1 and returned to  
his own in consequence of such  right4  
,by the right of postliminium a slave   
also who has fallen into  the hands of  

an enemy1 upon his release from thence1 
returns to the  service of his former   
master4    ,as to the law of            
postliminium1 horses1 mules1 and ships  
are considered  in the same light as    
slaves4 ,and whatever advantage this law
 gives any  one in recovering persons or
 things from an enemy1 the enemy in his 
turn has equal advantage from the same  
law4    ,but modern lawyers have made a 
distinction between two kinds of        
postliminium1 by one of which1 persons  
returned to their former  condition1 and
 by the other1 things are recovered4    
,,iv4 ,the right of postliminium may    
extend to those1 who are seized and     
detained in an enemy's country upon the 
breaking out of war4 ,for though  during
 the continuance of that war1 there may 
be reason for detaining  them1 in order 
to weaken the enemy's strength1 yet1    
upon the conclusion  of a peace1 no such
 motive and pretence can be devised for 
their  release being refused or delayed4
 ,it is a settled point therefore that  

upon peace being made1 prisoners of the 
above description always obtain  their  
liberty1 their claim to it being        
universally acknowledged4    ,with      
respect to other kinds of prisoners1    
every one used what he wished  to be    
thought his right1 except where fixed   
rules were prescribed by  treaty4 ,and  
for the same reason1 neither slaves1 nor
 things taken in  war are restored upon 
a peace1 except express stipulations be 
made to  that purpose4 ,a conqueror too1
 in general1 wishes to have it believed 
that he had a right to make such        
acquisition2 and indeed the departure   
from such a rule might give rise to wars
 without end4    ,v4 and ,,vi4 ,a       
prisoner of war1 upon his release1 and  
return to his  own country1 is entitled 
to all his privileges ,,there1 and      
indeed to  everything either corporeal1 
or incorporeal1 which he might have     
before  possessed in a ,,neutral        
,,state1 at the time of his captivity4  
,for if such  a state1 in order to      

preserve her neutrality1 considered his 
captivity  as a matter of right on the  
part of the enemy1 so also1 in order to 
shew her impartiality1 she cannot       
lawfully abridge his right to any  thing
 he may reclaim upon his release4 ,the  
controul therefore1 which  the person1  
to whom the prisoner belonged by the    
right of war1 had  over his effects1 was
 not absolutely unconditional3 for he   
might lose  it1 even against his will1  
whenever the prisoner came again under  
the  protection1 or within the          
territories1 of his own sovereign4      
,along with  the prisoner therefore he  
would lose everything1 which was        
considered  as an appendage to his      
person4    ,in cases where effects taken
 in war have been alienated1 a question 
arises1 whether the law of nations      
confirms the title1 and secures the     
possession of the person1 who has       
derived or purchased them from him1  who
 was master of them by the rights of    
war1 by having the prisoner  in his     

custody at the time of alienation1 or   
whether such things are  recoverable2   
supposing the things to be in a neutral 
territory4    ,a distinction seems      
proper to be made between things        
recoverable by  postliminium1 and things
 excepted from that right3 so that every
  alienation of the former must be      
qualified and conditional1 but that  of 
the latter may be absolute4 ,by things  
alienated may be understood  even those1
 of which a gift has been made1 or to   
which the owner has  relinquished every 
claim4    ,,vii4 ,upon any one's        
returning to his former condition by the
 law of  postliminium1 all his rights   
are restored as fully1 as if he had     
never  been in the hands and power of   
the enemy4    ,,viii4 ,the case of those
 however1 who have been conquered by the
 arms of  an enemy1 and have surrendered
 themselves1 forms an exception to this 
rule2 because engagements of that kind  
must be valid1 and honourably  adhered  
to according to the law of postliminium4

 ,so that during the  time of a truce1  
the right of postliminium cannot be     
claimed4    ,but where a surrender has  
been made without any express or        
positive  convention the right of       
postliminium exists in all its force4   
,,ix4 ,what has been said of individuals
 applies to nations3 so that a  free    
people1 who have been subjugated1 upon  
being delivered from the  yoke of the   
enemy by the power of their allies1 will
 recover their  former condition4       
,but if the whole population that       
constituted a state has been  dispersed1
 the people can no longer be considered 
as the same3 nor does  the law of       
nations in such a case enforce the right
 of postliminium  for the restoration of
 all effects formerly belonging to that 
people4  ,for as the identity of a ship1
 or any other material object1 can  only
 be ascertained by the permanent union  
of its original parts3 so  a nation can 
no longer be regarded as the same1 when 
every peculiar  characteristic belonging

 to it is effaced4    ,the state of     
,saguntum therefore was no longer judged
 to be the same1  when it was restored  
to its ancient possessors1 at the       
expiration of  eight years3 nor could   
,thebes any longer be deemed the        
original city1  as its inhabitants had  
been sold by ,alexander for slaves4     
,from hence it  is evident1 that the    
,thebans could not1 by the right of     
postliminium1  recover the sum of money1
 which the ,thessalians had owed them3  
and that  for two reasons3 because1 in  
the first place1 they were a new people2
  and1 secondly1 because ,alexander at  
the time that he was absolute  master of
 the city had a right1 if he thought    
proper1 to relinquish the  claim to that
 debt1 which he had actually done4      
,besides1 a debt is not  in the number  
of things recoverable by the right of   
postliminium4    ,the rules1 respecting 
a state1 are not much unlike those laid 
down by  the ancient ,roman law1 which  
made marriage a dissoluble tie1 so that 

it  could not be restored by the right  
of postliminium3 but a new consent1  and
 a new contract were necessary4    ,x4  
,by the ,roman civil law deserters were 
excluded from the right of              
postliminium4    ,,xi4 and ,,xii4 ,it is
 a point of much importance to the      
subject1 and it  was before declared in 
the affirmative1 that nations1 which    
have been  under a foreign yoke1 recover
 their former condition1 even though    
their  deliverance has not been effected
 by their former sovereign1 but by  some
 ally4 ,it is a settled rule1 where     
there is no express treaty to  the      
contrary4 ,at the same time it is but   
reasonable that such ally be            
indemnified for the expences incurred in
 accomplishing that deliverance4        
,,xiii4 ,among things within the right  
of postliminium1 lands in  particular   
attract our attention4 ,for1 as         
,pomponius observes1 upon the  expulsion
 of an enemy lands naturally revert to  
their former masters4  ,and in this     

sense expulsion is understood to take   
place from the time  that his free and  
open access to a territory is entirely  
cut off4    ,thus the ,lacedaemonians1  
after taking ,aegina from the           
,athenians1  restored it to its ancient 
owners4 ,justinian and other emperors   
restored to the heirs of the ancient    
possessors of the lands1 which  had been
 recovered from the ,goths and ,vandals1
 still reserving against  those owners  
all prescriptive rights1 which the      
,roman laws had  introduced4    ,the    
privileges belonging to lands attach to 
every right also connected  with the    
soil4 ,for religious or consecrated     
places1 that had been taken  by an      
enemy1 when recovered returned1 as      
,pomponius has said1 to their  former   
condition4    ,upon the same principle  
it was provided by a law in ,spain1 that
  provinces1 and all other hereditary   
jurisdictions1 particularly supreme     
jurisdictions1 should return to the     
original possessors by the right of     

postliminium2 and those of an inferior  
kind1 if reclaimed within the  space of 
four years4 ,except that citadels lost  
by war always belonged  to the crown1 in
 whatever manner they were recovered4   
,,xiv4 ,on the contrary a general       
opinion prevails1 that moveable         
property1 which constitutes part of a   
lawful prize1 is not recoverable  by the
 right of postliminium4 ,so that things 
acquired by purchase1  wherever they are
 found1 continue the property of the    
purchaser4 ,nor  has the original owner 
a right to claim them1 when found in a  
neutral  state1 or even carried into his
 own territory4    ,things useful in    
war1 as we find1 were formerly an       
exception to this  rule3 an exception1  
which seems to have been favoured by the
 law of  nations in order to induce men 
the more readily to provide them1 in    
the hopes of recovering them1 if lost4  
,and this indulgence was the  more      
easily granted1 as most nations1 at that
 period1 in all their  customs1 seem to 

have had an eye to a state of           
warfare4--,among the  things1 coming    
under this description1 ships of war1   
and merchant-ships  are reckoned1 but   
neither gallies1 nor pleasure-boats3    
mules also are  enumerated2 but only    
such as are used to carry baggage3      
horses and  mares too2 but only such as 
are broken in to obey the bridle4 ,and  
these  are things1 the bequest of which 
the ,roman law confirmed1 and which     
might come into the division of an      
inheritance4    ,arms and cloathing     
indeed are useful in war1 but still they
 were not  recoverable by the right of  
postliminium2 because the laws were by  
no  means inclined to favour those1 who 
lost either in war3 and such a  loss was
 deemed a disgrace1 as we find from many
 parts of history4 ,and  in this        
respect1 a distinction was made between 
a soldier's arms and  his horse3 because
 the latter might easily break loose1   
and fall into  an enemy's hands without 
any fault of his rider4 ,this           

distinction in  moveable things seems to
 have prevailed in the western parts of 
,europe1  under the ,goths1 even as far 
down as to the times of ,boetius4 ,for  
in  explaining the ,topics of ,cicero1  
he speaks of this right1 as a general   
custom of his day4    ,,xv4 ,but in     
later times1 if not before1 this        
distinction seems to have  been         
abolished4 ,for all intelligent writers 
speak of moveable effects  as not       
recoverable by the right of             
postliminium1 and it has evidently  been
 decided so1 in many places1 with       
respect to ships4    ,,xvi4 ,the right  
of postliminium is quite unnecessary1   
before the things  taken have been      
carried into some place of which the    
enemy is master1  although they may be  
in his possession3 for they have not yet
 changed  their owner1 by the law of    
nations4 ,and1 according to the opinions
 of  ,ulpian and ,javolenus1 the law of 
postliminium is no less superfluous1    
where goods have been taken by robbers  

and pirates1 because the law  of nations
 does not allow ,,their possession of   
the goods to convey any  change1 or     
right of property to ,,them4    ,upon   
this ground1 the ,athenians wished to   
consider ,philip1 as  ,,restoring1 and  
not ,,giving them ,halonesus1 of which  
they had been robbed  by pirates1 from  
whom he had taken it again4 ,for things 
taken by  pirates may be reclaimed1     
wherever they are found2 except that    
,,natural  ,,justice requires that the  
person1 who has gained them out of their
  hands1 at his own expence1 should be  
indemnified1 in proportion to what  the 
owner himself would willingly have spent
 for their recovery4    ,,xvii4 ,but a  
different maxim may be established by   
the ,,civil ,,law4 ,thus  by the law of 
,spain1 ships taken from pirates become 
the lawful prize  of the captors3 which 
may seem a hardship upon the original   
owners2  but in some cases individual   
interest must be sacrificed to the      
public  good3 especially where the      

danger and difficulty of retaking the   
ships  is so great4#fe ,but such a law  
will not prevent foreigners from        
asserting their claims4    ,,xviii4 ,it 
was rather a surprising maxim in the    
,roman law1 which  established the right
 of postliminium1 not only between      
hostile powers1  but between all foreign
 states1 and1 in some cases1 between    
those1 who  were members of the ,roman  
empire4 ,but this was only a vestige of 
the  rude and pastoral ages1 before     
society was perfectly formed4 ,so that  
even between nations1 who were not      
engaged in public war with each  other1 
a kind of licence resembling that of war
 prevailed4    ,in order to prevent such
 a licence from proceeding to all the   
calamities and slaughter of war1 the    
laws of captivity were introduced3  and1
 as a consequence of this1 postliminium 
took place1 which might be  considered  
as a great step towards the formation of
 equal treaties1  from the rules of     
which pirates and robbers were excluded1

 and which  indeed they themselves      
despised4    ,,xix4 ,in our times1 the  
right of making prisoners1 except in    
war1 has  been abolished not only among 
,christian states1 but even among the   
greater part of ,mahometans1 those bands
 of society1 which nature  designed to  
establish amongst men1 being in some    
measure restored4    ,but the ancient   
law of nations seems still in force     
against any rude  or barbarous people1  
who1 without any declaration or cause of
 war1  consider all mankind as enemies4 
,a decision has lately been made in the 
principal chamber of the parliament of  
,paris1 declaring all effects  belonging
 to the subjects of ,france1 and taken  
by the ,algerines1 a  people always     
engaged in predatory and maritime       
warfare with all other  countries1 if   
retaken1 to belong to the captors4--,at 
the same time it  was decided1 that1 in 
the present day1 ships are not reckoned 
among  things recoverable by the right  
of postliminium4          ,,chapter     

,,xi4#ff    ,,the ,,right ,,of ,,killing
 ,,enemies1 ,,in ,,just ,,war1 ,,to ,,be
 ,,tempered ,,with  ,,moderation ,,and  
,,humanity4      ,in what cases strict  
justice allows the destruction of an    
enemy--,distinction between misfortune  
and guilt--,between principals      and 
accessories in war--,distinction between
 unwarrantable and      excusable       
grounds of promoting war--,sometimes    
right and laudable to      forbear      
punishing an inveterate enemy--,every   
possible precaution      requisite to   
spare the innocent--,especially         
children1 women1 and      the aged1     
except they have committed atrocious    
acts--,clergymen1 men      of letters1  
husbandmen1 merchants1                  
prisoners--,conditional surrender       
not to be rejected--,unconditional      
surrender--,exceptions to the      above
 rules1 some of them considered1 and    
refuted--,delinquents when      numerous
 to be spared--,hostages to be          
spared--,unnecessary effusion      of   

blood to be avoided4      ,i4 and ,,ii4 
,cicero1 in the first book of his       
offices1 has finely  observed1 that some
 duties are to be observed even towards 
those1 from  whom you have received an  
injury4 ,for even vengeance and         
punishment  have their due bounds4 ,and 
at the same time he extols those ancient
  periods in the ,roman government1 when
 the events of war were mild1 and       
marked with no unnecessary cruelty4     
,the explanations given in the first    
chapter of this book will point  out the
 cases1 where the destruction of an     
enemy is one of the rights  of lawful   
war1 according to the principles of     
strict and internal  justice1 and where 
it is not so4 ,for the death of an enemy
 may proceed  either from an accidental 
calamity1 or from the fixed purpose of  
his  destruction4    ,no one can be     
justly killed by design1 except by way  
of legal  punishment1 or to defend our  
lives1 and preserve our property1 when  
it  cannot be effected without his      

destruction4 ,for although in           
sacrificing  the life of man to the     
preservation of perishable possessions1 
there  may be nothing repugnant to      
strict justice1 it is by no means       
consonant  to the law of charity4       
,but to justify a punishment of that    
kind1 the person put to death must  have
 committed a crime1 and such a crime    
too1 as every equitable judge  would    
deem worthy of death4 ,points1 which it 
is unnecessary to discuss  any further1 
as they have been so fully explained in 
the chapter on  punishments4    ,,iii4  
,in speaking of the calamities of war1  
as a punishment1 it is  proper to make a
 distinction between misfortune and     
injury4 ,for a  people may sometimes be 
engaged in war against their will1 where
 they  cannot be justly charged with    
entertaining hostile intentions4        
,upon this subject1 ,velleius           
,paterculus observes that to blame the  
,athenians for revolting1 at the time   
they were besieged by ,sylla1  betrays a

 total ignorance of history4 ,for the   
,athenians always  continued so steady  
in their attachment to the ,romans1 that
 their  fidelity became a proverbial    
expression4 ,yet their situation at that
  time excused their conduct1           
overpowered by the arms of ,mithridates1
  they were obliged to submit to a foe  
within1 while they had to sustain  a    
siege from their friends without4       
,,iv4 and ,v4 ,between complete injuries
 and pure misfortunes there may be      
sometimes a middle kind of actions1     
partaking of the nature of both1  which 
can neither be said to be done with     
known and wilful intention1  nor yet    
excused under colour of ignorance and   
want of inclination4 ,acts  of pure     
misfortune neither merit punishment1 nor
 oblige the party to  make reparation   
for the loss occasioned4 ,hence many    
parts of history  supply us with        
distinctions that are made between those
 who are the  authors of a war1 and     
principals in it1 and those who are     

obliged to  follow others1 as           
accessories in the same4    ,,vi4 ,but  
respecting the authors of war1 a        
distinction is to be made  also1 as to  
the motives and causes of war3 some of  
which though not  actually just1 wear an
 appearance of justice1 that may impose 
upon  the well meaning4 ,the writer to  
,herennius lays it down as the most     
equitable vindication of injury1 where  
the party committing it1 has  neither   
been actuated by revenge1 nor cruelty2  
but by the dictates of  duty and an     
upright zeal4    ,cicero1 in the first  
book of his offices1 advises the sparing
 of those1  who have committed no acts  
of atrocity and cruelty in war1 and that
  wars1 undertaken to maintain national 
honour1 should be conducted upon        
principles of moderation4 ,and1 in one  
of his letters1 adverting to the  war   
between ,pompey and ,caesar1 he         
describes the struggle between those    
two illustrious men1 as involved in so  
much obscurity of motives and  causes1  

that many were perplexed in deciding    
which side to embrace4 ,in  his speech  
too for ,marcellus1 he remarks that such
 uncertainty might be  attended with    
error1 but could never be charged with  
guilt4    ,,vii4 ,such forbearance in   
war is not only a tribute to justice1 it
  is a tribute to humanity1 it is a     
tribute to moderation1 it is a  tribute 
to greatness of soul4 ,it was in this   
moderation1 says ,sallust1  the         
foundation of ,roman greatness was laid4
 ,tacitus describes his  countrymen as a
 people no less remarkable for their    
courage in the  field1 than for their   
humanity to the vanquished and          
suppliant4    ,on this subject1 there is
 a brilliant passage in the fourth book 
to ,herennius1 where it is said1 ,it was
 an admirable resolution of  our        
ancestors1 never to deprive a captive   
prince of his life4 ,for  it would be   
truly a violation of common justice to  
abuse1 by wanton  cruelty and rigour1   
the power over those1 whom fortune has  

put into  our hands1 by reducing them   
from the high condition1 in which she   
had  placed them before2 their former   
enmity is forgotten4 ,because it is  the
 characteristic of bravery to esteem    
opponents as enemies1 while  contending 
for victory1 and to treat them as men1  
when conquered1  in order to soften the 
calamities of war1 and improve the terms
 and  relations of peace4 ,but it may be
 asked1 if the enemy now treated with   
this indulgence would have shewn the    
same lenity himself4 ,to which a  reply 
may be made1 that he is not an object of
 imitation in what he  ,,would have     
done1 so much as in what he ,,ought to  
have done4    ,,viii4 ,though there may 
be circumstances1 in which absolute     
justice will  not condemn the sacrifice 
of lives in war1 yet humanity will      
require  that the greatest precaution   
should be used against involving the    
innocent in danger1 except in cases of  
extreme urgency and utility4    ,,ix4   
,after establishing these general       

principles1 it will not be  difficult to
 decide upon particular cases4 ,seneca  
says1 that in the  calamities of war    
children are exempted and spared1 on the
 score  of their age1 and women from    
respect to their sex4 ,in the wars of   
the ,hebrews1 even after the offers of  
peace have been rejected1 ,god  commands
 the women and children to be spared4   
,thus when the ,ninevites were          
threatened with utter destruction1 on   
account of their grievous crimes1 a     
mitigation of the sentence was  allowed1
 in compassion to the many thousands1   
who were of an age  incapable of making 
a distinction between right and wrong4  
,if ,god1 from whose supreme gift the   
life of man proceeds1 and on whose      
supreme disposal it depends1 prescribes 
to himself a rule like this1  it is     
surely incumbent upon men1 who have no  
commission1 but for the  welfare and    
preservation of the lives of men1 to act
 by the same rule4  ,thus age and sex   
are equally spared1 except where the    

latter have  departed from this         
privilege by taking arms1 or performing 
the part of  men4    ,x4 ,the same rule 
may be laid down too with respect to    
males1 whose  modes of life are entirely
 remote from the use of arms4 ,and in   
the  first class of this description may
 be placed the ministers of  religion1  
who1 among all nations1 from times of   
the most remote  antiquity have been    
exempted from bearing arms4--,thus1 as  
may be seen  in sacred history1 the     
,philistines1 being enemies of the      
,jews1 forbore  doing harm to the       
company of prophets1 that was at ,gaba3 
and ,david fled  with ,samuel to another
 place1 which the presence of a         
prophetic company  protected from all   
molestation and injury4    ,plutarch    
relates of the ,cretans1 that when all  
order among them was  entirely broken by
 their civil broils1 they abstained from
 offering  violence to any member of the
 priesthood1 or to those employed in the
  sacred rites belonging to the dead4   

,from hence the ,greeks came to  denote 
a ,,general ,,massacre by the proverbial
 expression of ,,no ,,one ,,being       
,,left ,,to ,,carry ,,fire ,,to ,,the   
,,altar4    ,equally privileged with the
 holy priesthood are those1 who devote  
their lives to the pursuit of letters1  
and other studies beneficial to         
mankind4    ,,xi4 ,diodorus bestows an  
encomium upon the ,indians1 who1 in all 
their  wars with each other1 forbore    
destroying or even hurting those        
employed  in husbandry1 as being the    
common benefactors of all4 ,plutarch    
relates  the same of the ancient        
,corinthians and ,megarensians1 and     
,cyrus sent  a message to the king of   
,assyria to inform him that he was      
willing to  avoid molesting all who were
 employed in tilling the ground4        
,,xii4 ,to the above catalogue of those 
exempted from sharing in the  calamities
 of war1 may be added merchants1 not    
only those residing for  a time in the  
enemy's country1 but even his           

natural-born1 and regular  subjects3    
artisans too1 and all others are        
included2 whose subsistence  depends    
upon cultivating the arts of peace4     
,,xiii4 and ,,xiv4 ,more civilized      
manners having abolished the barbarous  
practice of putting prisoners to death1 
for the same reason1 the  surrender of  
those1 who stipulate for the            
preservation of their lives  either in  
battle1 or in a siege1 is not to be     
rejected4    ,the ,romans1 when         
investing towns1 always accepted offers 
of  capitulation1 if made before the    
battering ram had touched the walls4    
,caesar gave notice to the ,atuatici1   
that he would save their city1  if they 
surrendered1 before the battering ram   
was brought up4 ,and in  modern times it
 is the usual practice1 before shells   
are thrown1 or  mines sprung1 to summon 
places to surrender1 which are thought  
unable  to hold out--and where places   
are stronger1 such summons is generally 
sent1 before the storming is made4      

,,xv4 and ,,xvi4 ,against these         
principles of natural law and equity an 
objection is sometimes derived from the 
necessity of retaliation1  or striking  
terror1 in cases of obstinate           
resistance4 ,but such an  objection is  
by no means just4 ,for after a place has
 surrendered1 and  there is no danger to
 be apprehended from the prisoners1     
there is  nothing to justify the further
 effusion of blood4--,such rigour was   
sometimes practised1 where there were   
any enormous acts of injustice1  or any 
violation of faith2 it was practised    
also upon deserters1 if  taken4         
,sometimes1 where very important        
advantages may attend striking a        
terror1 by preventing the same crimes in
 future from being committed1  it may be
 proper to exercise the right of rigour 
in its full extent4  ,but an obstinate  
resistance1 which can be considered as  
nothing but the  faithful discharge of a
 trust1 can never come within the       
description of  such delinquencies1 as  

justify extreme rigour4    ,,xvii4      
,where delinquencies indeed are such as 
deserve death1 but the  number of       
offenders is very great1 it is usual1   
from motives of mercy1  to depart in    
some degree from the right of enforcing 
the whole power  of the law3 the        
authority for so doing is founded on the
 example of  ,god himself1 who commanded
 such offers of peace to be made to the 
,canaanites1 and their neighbours1 the  
most wicked of any people upon  the face
 of the earth1 as might spare their     
lives upon the condition of  their      
becoming tributaries4    ,,xviii4 ,from 
the opinions advanced and maintained    
above1 it will not  be difficult to     
gather the principles of the law of     
nature respecting  hostages4    ,at the 
time1 when it was a general opinion that
 every one had the same  right over his 
life1 as over his property1 and that    
right1 either by  express or implied    
consent was transferred from individuals
 to the  state1 it is not surprising    

that we should read of hostages1 though 
harmless and innocent as individuals1   
being punished for the offences  of the 
state3 and1 in this case1 the consent of
 the state to such a  regulation implies
 that of individuals1 who have          
originally resigned  their own will to  
that of the public2 in whom1 after such 
resignation1  it indubitably vested4    
,but when the day-spring rose upon the  
world1 men1 obtaining clearer  views of 
the extent of their power1 found that   
,god1 in giving man  dominion over the  
whole earth1 reserved to himself the    
supreme disposal  of his life1 so that  
man cannot resign to any one the right  
over his  own life or that of another4  
,,xix4 ,by way of conclusion to this    
subject it may be observed1 that all    
actions no way conducive to obtain a    
contested right1 or to bring the  war to
 a termination1 but calculated merely to
 display the strength  of either side   
are totally repugnant to the duties of a
 ,christian and  to the principles of   

humanity4 ,so that it behoves ,christian
 princes  to prohibit all unnecessary   
effusion of blood1 as they must render  
an  account of their sovereign          
commission to him1 by whose authority1  
and  in whose stead1 they bear the      
sword4          ,,chapter ,,xii4    ,,on
 ,,moderation ,,in ,,despoiling ,,an    
,,enemy',s ,,country4      ,lawfulness  
of despoiling an enemy's                
country--,forbearance of using      this
 right1 where things may be useful to   
ourselves1 and out of      an enemy's   
power--,forbearance in the hopes of     
speedy conquest1 or      where things   
are not immediately necessary to support
 an enemy1      and aid him in          
maintaining the war--,buildings for the 
purposes      of religion not to be     
wantonly destroyed--,advantages of this 
moderation4      ,i4 ,one of the three  
following cases is requisite to justify 
any one  in destroying what ,,belongs to
 another3 there must be either such a   
necessity1 as at the original           

institution of property might be        
supposed  to form an exception1 as if   
for instance any one should throw the   
sword of another into a river1 to       
prevent a madman from using it to  his  
destruction3 still according to the true
 principles maintained in  a former part
 of this work he will be bound to repair
 the loss3#fg  or there must be some    
debt1 arising from the non-performance  
of an  engagement1 where the waste      
committed is considered as a            
satisfaction  for that debt3 or there   
must have been some aggressions1 for    
which such  destruction is only an      
adequate punishment4    ,now1 driving   
off some of our cattle1 or burning a few
 of our houses1  can never be pleaded as
 a sufficient and justifiable motive for
 laying  waste the whole of an enemy's  
kingdom4 ,polybius saw this in its      
proper  light1 observing1 that vengeance
 in war should not be carried to its    
extreme1 nor extend any further than was
 necessary to make an aggressor  atone  

justly for his offence4 ,and it is upon 
these motives1 and within  these limits 
alone1 that punishment can be inflicted4
 ,but except where  prompted to it by   
motives of great utility1 it is folly1  
and worse than  folly1 wantonly to hurt 
another4    ,but upon duly and          
impartially weighing the matter1 such   
acts are  oftener regarded in an odious 
light1 than considered as the dictates  
of  prudent and necessary counsels4 ,for
 the most urgent and justifiable        
motives are seldom of long continuance1 
and are often succeeded by  weightier   
motives of a more humane description4   
,,ii4 ,it may be possible1 under some   
circumstances1 to detain what  belongs  
to an enemy so as to prevent his        
deriving advantage from it1  in which   
case it would be an unnecessary and     
wanton act to destroy it4  ,and to such 
circumstances the divine law has an eye1
 in ordering wild  trees to be made use 
of for the construction of works in a   
siege1 while  fruit-trees1 and every    

thing necessary for the support of man1 
ought1  if possible1 to be spared4      
,,iii4 ,where there is an expectation   
also of speedy victory and conquest1    
prudence will dictate to a general or   
commander of any kind the  necessity of 
forbearing from all acts of destruction1
 by authorising  and committing which he
 would only be injuring those           
possessions1 that  are likely to come   
into the hands of his own state or      
sovereign4 ,thus1  as we are informed by
 ,plutarch1 when ,philip had overrun    
,thessaly1  destroying and plundering   
the whole country1 ,flaminius ordered   
his  troops to march in a regular       
manner1 as through a ceded country which
  had become their own4    ,,iv4 ,in the
 next place1 it is unnecessary to       
destroy an enemy's country1  when he has
 other sources1 from which he can draw  
his supplies1 as  for instance1 the sea 
or any adjoining territory4 ,archidamus1
 in  ,thucydides1 attempting to dissuade
 the ,lacedaemonians from a war with    

the ,athenians1 asks them1 what object  
they propose to themselves by  such a   
war8 he asks them if they suppose that  
,attica can easily be laid  waste owing 
to the advantage1 which their troops    
have in superiority  and numbers8 but1  
says he1 they have other dominions to   
furnish  them with supplies1 and they   
can avail themselves also of maritime   
importations4 ,so that under such       
circumstances1 it is best to leave      
agriculture unmolested1 even on the     
frontiers of each side3 a practice      
lately followed in the wars of the low  
countries1 where contributions  were    
paid to both parties1 in return for such
 protection4    ,v4 ,there are some     
things of such a nature1 as to          
contribute1 no way1  to the support and 
prolongation of war3 things which reason
 itself  requires to be spared even     
during the heat and continuance of war4 
,polybius calls it brutal rage and      
madness to destroy things1 the          
destruction of which does not in the    

least tend to impair an enemy's         
strength1 nor to increase that of the   
destroyer3 ,such are ,porticos1         
,temples1 statues1 and all other elegant
 works and monuments of art4  ,cicero   
commends ,marcellus for sparing the     
public and private edifices  of         
,syracuse1 as if he had come with his   
army to protect ,,them1 rather  than to 
take the place by storm4    ,,vi4 ,as   
this rule of moderation is observed     
towards other ornamental  works of art1 
for the reasons before stated1 there is 
still greater  reason1 why it should be 
obeyed in respect to things devoted to  
the  purposes of religion4 ,for although
 such things1 or edifices1 being the    
property of the state may1 according to 
the law of nations1 be with  impunity   
demolished1 yet as they contribute      
nothing to aggravate the  calamities1 or
 retard the successes of war1 it is a   
mark of reverence  to divine things to  
spare them1 and all that is connected   
therewith3  and more especially should  

this rule be adhered to among nations1  
worshipping the same ,god according to  
the same fundamental laws1  although    
differing from each other by slight     
shades of variation in  their rights and
 opinions4 ,thucydides says that it was 
a law among the  ,greeks of his time1 in
 all their invasions of each other's    
territories1  to forbear touching the   
edifices of religion3 and ,livy likewise
  observes that1 upon the destruction of
 ,alba by the ,romans1 the temples  of  
the ,gods were spared4    ,,vii4 ,what  
has been said of the sacred edifices of 
religion applies also  to monuments     
raised in honour of the dead1           
unnecessarily to disturb  whose ashes in
 their repose bespeaks a total disregard
 to the laws and  ties of our common    
humanity4    ,,viii4 ,although it does  
not fall within the province of this    
treatise  to inquire into the utility of
 war in all its various branches1 but   
only to regulate its practices by       
confining them within due and  lawful   

bounds2 yet it will not be improper to  
observe that rules and  practices derive
 much of their merit from the utility1  
with which they  are attended4 ,so that 
one great quality1 to recommend the     
moderation  above alluded to1 will be   
found in its preventing the enemy from  
being  driven to those resources1 which 
men never fail1 at last1 of finding  in 
despair4 ,it is a just remark made by   
some ,theologians1 that all  ,,christian
 princes and rulers1 who wish to be     
found ,,such in the sight  of ,god as   
well as that of men1 will deem it a duty
 to interpose their  authority to       
prevent or to suppress all ,,unnecessary
 violence in the  taking of towns3 for  
acts of rigour can never be carried to  
an extreme  without involving great     
numbers of the innocent in ruin4 ,and   
practices  of that kind1 besides being  
no way conducive to the termination of  
war1  are totally repugnant to every    
principle of ,christianity and justice4 
,,chapter ,,xiii4    ,,on ,,moderation  

,,in ,,making ,,captures ,,in ,,war4    
,effects belonging to the subjects of an
 enemy1 and taken detained      as a    
pledge or debt--,not to be taken by way 
of punishment for      another's        
offence--,the debt or obligation1       
arising from a state of      war1       
illustrated by examples--,forbearance in
 the exercise of such a      right from 
principles of humanity4      ,i4 ,the   
capture of an enemy's goods1 even in    
,,just ,,war1 is not1 in ,,all  ,,cases1
 perfectly justifiable1 nor is the      
captor always exempt from the  ties of  
restitution4 ,for strictly speaking1    
according to the rules of  pure justice1
 it is not lawful to seize or detain    
goods except to the  exact amount of the
 debt which the enemy has incurred4     
,indeed goods may  be detained beyond   
that1 as a necessary pledge of security1
 but still  upon the condition of being 
restored1 as soon as the danger has     
ceased3  ,,restored ,,either            
,,literally1 ,,or ,,by ,,some ,,proper  

,,compensation ,,being ,,made4    ,here 
then is a right of capture1 which       
confers no right of property or         
acquisition4 ,but when any thing may    
become due to us1 either from a  penalty
 or the non-performance of an           
engagement1 in both cases a right  to an
 enemy's goods1 if they can be taken1 is
 acquired4 ,by the latter  kind of debt 
not only the effects of the debtor      
himself1 but those1  belonging to his   
subjects1 may according to the          
principles introduced  by the law of    
nations be taken as a security4    ,this
 right of the law of nations is very    
different from that  established in     
impunity alone1 or depending upon the   
external force  of judicial authority4  
,for as by our private consent the      
person with  whom we contract acquires  
not only an external and legal right    
over  our property1 but an internal     
right1 proceeding from conscience1 so he
  acquires the same right by a kind of  
common consent1 which virtually         

comprehends the consent of individuals1 
in which sense the law is  called the   
common compact or covenant of the state4
    ,and in transactions of this kind it
 is most likely that nations  approving 
of such a rule1 introduced a law1 which 
might not only  prevent greater evils1  
but also enable every one to attain his 
own  right4    ,,ii4 ,but in the other  
kind of debt arising from penalty1 or   
punishment1  it does not appear1 that   
nations consented to the establishment  
of  any such right over the effects of  
subjects4 ,for binding the property  of 
one man for the offence of another is a 
kind of odious act1 and  therefore ought
 not to be extended farther than the law
 appears to have  actually decreed4 ,nor
 is the advantage derived from the      
latter1 by any  means equal to that     
attending the former kind of debt4 ,for 
what is due  to us from damage1 or the  
non-performance of a treaty may be      
considered  as a part of our effects1   
but it is not so with the obligation to 

punishment1 which is purely of a        
personal nature1 therefore no loss is   
incurred by relinquishing this right4   
,nor is the argument in the least       
weakened by what was said before#fh     
respecting the ,athenian law4 ,for there
 it was maintained that subjects  were  
not bound to suffer1 because the state  
was amenable to punishment1  but in     
order to compel the state to do what she
 ought to do1 in  bringing the guilty to
 punishment3 a debt arising from duty1  
and  relating to obligations of the     
former kind1 rather than to those of    
the latter4 ,for there is a difference  
between being obliged to punish  another
 and being one's self amenable to       
punishment3 tho' the latter  may        
frequently arise from the neglect of    
doing the former1 but still  there is   
the same distinction between them1 as   
between cause and effect4    ,the goods 
of subjects can only be taken by way of 
reprisal in return  for other goods     
taken by the enemy2 but they can never  

be taken as  a punishment for the       
neglect of bringing offenders to        
justice4 ,the  delinquents themselves1  
in the number of whom may be reckoned   
those1  who have neglected to discharge 
their duty in this respect1 must answer 
for such offences4    ,,iii4 ,the goods 
of subjects may be taken1 and a property
 acquired  therein1 not only in order to
 obtain payment of the ,,original debt1 
which occasioned the war1 but of ,,other
 debts also1 to which the same  war may 
have given birth4 ,and in this sense the
 words of those are  to be taken1 who   
maintain1 that captures in war are not a
 perfect  compensation for the principal
 debt1 but only used as a means to      
enforce satisfaction for the damages    
sustained from aggressions4  ,thus the  
,romans1 in their dispute with          
,antiochus1 as related by ,livy1        
thought it but right for that king to   
make reparation for all the  expenses   
incurred in the war1 which he had       
occasioned4 ,indeed any  terms1 that may

 be justly imposed upon the conquered   
may justly be  enforced by war4    ,,iv4
 ,the right of seizing the goods of the 
innocent subject of an  enemy seems to  
have been introduced1 in order to compel
 the original  aggressor1 or debtor to  
grant redress for the injury he had     
done3 and  although his falling on the  
innocent may be no way repugnant to what
 is  legally right1 it is in some       
measure a departure from the principles 
of humanity4 ,on the other hand1        
history1 especially the ,roman history1 
abounds in examples of humanity1 where  
lands have been restored to a  conquered
 enemy1 upon condition of their         
belonging to the ,,state1 and  becoming 
subject to the payment of a tribute4    
,,chapter ,,xv4#fi    ,,on ,,moderation 
,,in ,,acquiring ,,dominion4      ,how  
far internal justice permits us to      
acquire dominion--,moderation1      in  
the use of this right over the          
conquered1      laudable--,incorporating
 them with the conquerors--,allowing    

them      to retain their               
dominions--,placing garrisons           
therein--,imposing      tributes or     
other burdens--,utility of such         
moderation--,change in      the form of 
a conquered government--,the conquered  
permitted to      retain some part of   
their former liberties--,especially in  
matters      of religion--,clemency to  
be shewn4      ,i4 ,that equity and     
moderation towards individuals1 which   
are so highly  extolled1 are still more 
deserving of admiration1 when exercised 
towards nations and kingdoms2 where     
injustice would be attended with  more  
signal calamities1 and moderation with  
more beneficial effects4    ,in just war
 the right of dominion over a people1   
and the sovereign  power1 which that    
people possess1 may be acquired as well 
as any  other right4 ,but the claims to 
such a right ought by no means to be    
prosecuted beyond indemnity for         
aggression1 and security against future 
evils4    ,but this motive1 so necessary

 to be observed1 especially in all      
treaties of peace1 as well as in the use
 of victory1 is often  confounded with  
others4 ,in other points a sovereign    
prince or state may  relinquish a claim 
from a principle of moderation1 but     
where the future  security of their     
subjects is concerned1 it is an act of  
cruelty rather  than of moderation to   
relax too far in favour of a conquered  
enemy4    ,,ii4 ,aristotle has1 more    
than once1 said1 that war is undertaken 
for  the sake of peace1 and toil endured
 in order to obtain rest4 ,and in  the  
same manner1 ,cicero has observed1 that 
men go to war1 that they  may live in   
peace without molestation and injury4   
,war too1 as we are  instructed by the  
teachers of true religion1 may be made1 
to remove  every thing that interrupts1 
and stands in the way of peace4    ,in  
the primitive ages1 as we find from     
history1 wars in general were  made to  
preserve territories rather than to     
extend them4 ,and any  deviation from   

this rule was thought unlawful3 thus the
 prophet ,amos  reproves the ,ammonites 
for their love of making conquests4     
,,iii4 ,the prudent moderation of the   
ancient ,romans approaches nearly to    
this model of primitive innocence4 ,for 
although they made conquests1  they     
mitigated the fate of the conquered by  
incorporating them with  themselves4    
,,iv4 ,another mark of moderation in the
 use of victory is leaving to  conquered
 kings1 or nations the dominions1 which 
they ,,lawfully held  before4           
,polybius highly extols the merit and   
wisdom of ,antigonus1 who1 having       
,sparta in his power1 allowed the       
inhabitants to retain their national    
polity and freedom4    ,v4 ,sometimes   
indeed a conqueror1 though allowing a   
subjugated people  to retain their      
dominion and sovereignty1 must provide  
for his own  security1 by placing       
garrisons in their country4    ,,vi4    
,contributions too are frequently       
imposed and levied1 not so much  by way 

of indemnity for expences incurred1 as  
for a future security  between the      
conqueror1 and the conquered country4   
,upon the same  principle1 as was       
before#gj observed1 in explaining the   
nature of  unequal treaties1 conditions 
may be imposed also requiring a         
conquered  power to deliver up a certain
 number of her ships and forts1 and to  
reduce her troops to a limited number4  
,,vii4 ,but leaving to conquered powers 
a part or the whole of their  dominions 
is not only sometimes an act of justice 
and humanity1 but  an act of sound      
policy also4 ,among other of ,numa's    
institutions1 his  manner of celebrating
 the rites of ,,terminus1 the ,,deity   
,,of ,,boundaries1  is much commended2  
for he prohibited the use of blood in   
those  ceremonies1 as an intimation that
 nothing was more conducive to the      
peace and harmony of the world1 than for
 every nation to confine  herself within
 her proper bounds4    ,in conformity to
 which maxim ,florus observes1 that it  

is more easy to  make conquests than to 
keep them4 ,to which rule ,plato1 in his
 third  book of ,laws1 adapts the       
proverbial expression of ,hesiod1 that  
,,half ,,is  ,,better ,,than ,,the      
,,whole4    ,,viii4 ,the ,lacedaemonians
 and the ,athenians anciently claimed no
 farther  dominion over conquered cities
 and states1 than purely wishing them to
  adopt forms of government like their  
own1 the ,lacedaemonians living  under  
an aristocratic1 and the ,athenians     
under a democratic system4 ,but  whether
 such changes were conducive to a       
conqueror's security1 it is  not to our 
present purpose to examine4    ,,ix4 ,if
 it is not perfectly safe to forbear    
exercising ,,any dominion over  a       
conquered enemy1 the matter may be so   
regulated as to leave him some  portion 
of his former sovereignty and power4    
,thus among the ,jews the  sceptre      
remained with the ,sanhedrim1 even after
 ,archelaus was deprived  of his        
kingdom2 and ,alexander in many cases   

allowed ,darius to remain a  sovereign  
over others1 while he required of him   
submission to himself4    ,x4 ,even     
though a conquered power was deprived of
 all sovereignty1  she might be allowed 
to retain some of her laws1 privileges1 
and  magistracies of inferior           
importance4 ,thus1 ,pliny1 in his       
letters1  informs us1 that in the       
proconsular province of ,bithynia1 the  
city of  ,apamaea was allowed to        
regulate the form of her government at  
her own  pleasure1 and1 in other places1
 the ,bithynians were permitted to      
retain  their own magistrates1 and their
 own senate4    ,,xi4 ,this indulgence  
ought to be shewn to every people1      
especially in  their attachment to the  
religion of their forefathers1 of which 
they  should never be deprived but with 
their own consent and conviction4 ,an   
indulgence1 which ,agrippa in his       
address to ,caius1 as cited by ,philo   
in the account of his embassy1 approves 
of1 as highly grateful to the  conquered

 people1 and by no means prejudicial to 
the conqueror4 ,at the  same time a     
conqueror will take care that erroneous 
opinions do not  prevail to the         
prejudice and overthrow of true         
religion1 as was done by  ,constantine  
upon his crushing the party of          
,licinius1 and afterwards by  the       
,franks and other kings4                
,,chapter ,,xvi4    ,,on ,,moderation   
,,with ,,respect ,,to ,,things          
,,excluded ,,from ,,the ,,right ,,of    
,,postliminium ,,by ,,the ,,law ,,of    
,,nations4      ,internal justice       
requires the restitution of things taken
 from others      by an enemy in unjust 
war--,deductions made--,subjects and    
countries1      if unjustly seized by an
 enemy1 to be restored to their original
      sovereign--,the time1 when the    
obligation to restore them expires1     
defined--,what is to be done in doubtful
 cases4      ,i4 ,how far things taken  
in just war become the property of the  
captors  has been explained before4     

,from which a deduction must be made of 
things recoverable by the right         
postliminium1 those being no captures   
at all4    ,but things1 taken in unjust 
war1 are to be restored1 not only by    
those1  who have taken them1 but by     
others also into whose hands they may   
have  by any means fallen4 ,for1 as the 
,roman lawyers say1 no one can convey   
to another a greater right than he      
himself possesses4 ,the original  captor
 had no just title to any property      
therein1 neither can the  person1       
deriving his title through him1         
establish any better claim4--,a         
,,second or ,,third possessor may have  
acquired a property therein1 which  the 
law presumes he has a right to1 till the
 contrary be shewn1 and  for which an   
action may be maintained4 ,yet it is a  
right of which he  cannot honestly avail
 himself against the real owner1 from   
whom it was  unjustly taken4    ,,ii4   
and ,,iii4 ,therefore such things are to
 be restored to those1 from  whom they  

were taken1 which we find in ancient    
times was often done4  ,livy in relating
 the defeat of the ,volscians and ,aequi
 by a ,roman  ,consul1 says that the    
booty was exposed in a public place1 for
 the  space of three days1 that every   
one1 coming to recognise what belonged  
to him1 might take it away4#ga    ,but  
if any one has become possessed of such 
a thing by purchase1 it  may be asked1  
if he can charge the person from whom it
 was originally  taken1 with the price  
which he has paid for it8 ,according to 
the  principles before#gb laid down1 he 
certainly may charge as much to the     
person losing it1 as the repossession of
 a thing1 which he despaired of  ever   
recovering1 is worth4    ,the history of
 ,abraham seems applicable to this      
subject1 when he  returned from his     
victory over the five kings4 ,being a   
man of noble and  exalted piety1 he     
would appropriate nothing to himself1   
but considering  the things retaken1 as 
his own right1 in recompence for his    

labour and  danger1 he devoted a tenth  
part to ,god1 after deducting the       
necessary  expences1 and divided a      
certain portion among his companions4   
,,iv4 ,as ,,things are to be restored to
 their original owners1 so ,,subjects   
are to be restored to their former      
lawful sovereigns4    ,v4 ,the period   
also1 when the obligation to restitution
 expires1 is  often a subject of        
inquiry4 ,but this is a question1 when  
arising  between subjects of the same   
kingdom1 which must be settled by the   
municipal laws of that country3 but when
 the contending parties are  the        
subjects of foreign powers1 the matter  
can only be decided upon a  conjecture  
of the time sufficient to constitute a  
presumed dereliction  of property4      
,,vi4 ,but where the right of war is    
doubtful1 it will be safest to follow   
the conduct of ,aratus of ,sicyon1 in   
advising the new possessors in some     
measure to prefer taking a sum money in 
lieu of the possession1 and             

recommending the same maxim to the      
original owners1 to prefer a sum of     
money1 if they could obtain it1         
equivalent to the recovery of their     
right4          ,,chapter ,,xvii4       
,,respecting ,,those ,,who ,,are        
,,neutral ,,in ,,war4      ,nothing to  
be taken belonging to neutrals1 but     
under circumstances of      extreme     
necessity1 and with an intention to pay 
the full price of      it--,conduct of  
neutral powers towards belligerents4    
,i4 ,it may appear superfluous to speak 
of neutral powers1 against whom  no     
rights of war can exist4 ,but as war1   
under the plea of necessity1  occasions 
many aggressions to be committed against
 them1 especially  when bordering upon  
the seat of its operations1 it may be   
necessary  briefly to repeat a former   
assertion1 that nothing short of extreme
  exigency can give one power a right   
over what belongs to another no way     
involved in the war4 ,the case too is   
equally clear that no emergency  can    

justify any one in taking and applying  
to his own use what the  owner stands in
 equal need of himself4 ,but even where 
the emergency can  be plainly proved1   
nothing can justify us in taking or     
applying the  property of another to our
 use1 beyond the ,,immediate ,,demands  
,,of ,,that  emergency4 ,where the      
,,custody of a thing1 by securing it1 is
 sufficient  for the purpose1 the ,,use 
and ,,consumption of it is absolutely   
unlawful4  ,if the ,,use of it is       
necessary1 it must not be ,,abused3 and 
if the entire  ,,abuse of it be         
requisite1 the full value should be     
paid4    ,,ii4 ,again1 according to what
 was said in a preceding part of this   
book1  it is the duty of those1 who     
profess neutrality in a war to do       
nothing  towards increasing the strength
 of a party maintaining an unjust       
cause1 nor to impede the measures of a  
power engaged in a just and  righteous  
cause4 ,but in doubtful cases1 they     
ought to shew themselves  impartial to  

both sides1 and to give no succour to   
besieged places1 but  should allow the  
troops of each to march through the     
country1 and to  purchase forage1 and   
other supplies4 ,the ,corcyraeans1 in   
,thucydides1  say that if the ,athenians
 intend to remain neuter1 they ought    
either  to prohibit the ,corinthians    
from enlisting men in the territory of  
,attica1 or to give ,,them the same     
privilege4 ,the ,romans objected to the 
conduct of ,philip king of ,macedon1    
charging him with a double violation  of
 treaties1 both by injuring the allies  
of the ,roman people1 and  assisting the
 enemy with supplies of men and money4  
,,chapter ,,xix4#gc    ,,on ,,good      
,,faith ,,between ,,enemies4      ,good 
faith due to enemies of every           
description--,due even to pirates1      
and others of the same kind1 in all     
treaties with them--,a promise          
given to them1 binding1 when not        
extorted by fear--,oaths to be          
inviolably observed--,the law of nations

 does not allow fear to      be alleged 
as an exception to the above            
rules--,good faith to be      observed  
even to a treacherous enemy--,this      
obligation ceases1 where      one of the
 parties violates his engagements--,or  
refuses a just      compensation--,even 
where the obligation arose from a       
different      contract--,from loss     
occasioned--,or from a                  
penalty--,application of      these     
principles to war4      ,i4 ,it was     
before said that the number and extent  
of actions1 lawful  in war1 may be      
considered either upon their own        
intrinsic merits1 or  as rising out of  
some antecedent engagement4 ,the former 
point having  before been fully         
explained1 this is the proper place for 
discussing  the latter1 which           
comprehends the good faith of enemies   
towards each  other4    ,cicero1 in his 
fifth book on the bounds of good and    
evil1 has well  observed that every one 
must approve and commend a disposition  

to  adhere faithfully to our engagements
 not only from disinterested  motives1  
but in some cases even in opposition to 
our own interest4 ,and  ,augustine says 
that it is right to maintain the pledge 
of faith given  to an enemy1 for under  
the character of enemies men do not lose
 their  right to the fulfilment of a    
promise1 a right which every one        
possessed  of reason is capable of4 ,it 
is the power of reason and speech from  
which the obligation of promises        
springs4 ,nor is it to be supposed      
that1 because it is lawful to deceive an
 enemy on some occasions1 the  same rule
 will authorise a violation of faith in 
engagements4 ,for the  obligation to    
speak the truth arises from causes      
antecedent in their  existence to any   
state of warfare1 and they are causes   
which a state  of warfare may render it 
necessary to change or abridge4 ,but a  
promise  confers a new right of itself4 
,a distinction which did not escape the 
notice of ,aristotle1 who1 in speaking  

of truth1 says that he does not         
consider truth and sincerity in         
engagements1 with relation to justice   
or injustice1 but as belonging to       
another class of virtues4    ,,ii4 ,as  
to engagements with pirates1 we may     
observe1 that ,pompey in a  great       
measure concluded the disputes with them
 by treaty1 sparing their  lives1 and   
allowing them places to reside in1 on   
condition of their  abandoning their    
former way of life4 ,the law of nations 
indeed has not  established the same    
mode of communication with them1 as     
among regular  enemies in just and      
lawful war3 but still the very          
circumstance of  their being ,,men1     
entitles them to those privileges which 
are sanctioned  by the law of nature1   
among which the observance of           
engagements is one4    ,,iii4 ,let us   
consider if a more specious argument    
than ,cicero's may not  be devised on   
this subject4--,in the first place it   
may be stated that  atrocious           

malefactors1 forming no part of a state1
 may be punished by  any one whatever1  
according to the law of nature4 ,for    
those1 who may be  punished with death1 
may upon the same principle be deprived 
of their  property and all their rights4
 ,and among rights may be enumerated the
  right of requiring a fulfilment of    
promises and engagements3 the guilty    
may therefore be deprived of this right 
by way of penalty4 ,in reply to  which  
it may be said1 this will certainly be  
the case1 if the person  is treated     
with1 but not as a malefactor3 for the  
very act of treating  with him shews    
that he is not considered any longer in 
that light1 but  as one entitled to all 
the rights of treaty1 the criminal part 
of his  character not being taken into  
the account1 all penalties on that score
  being1 as it were remitted4 ,for every
 act of treaty must be interpreted  so  
as to avoid absurdity4    ,,iv4 ,an     
objection to treating with pirates upon 
principles of good faith  is deduced    

from their calling1 which is to extort  
terms by fear4 ,now  where a promise has
 been extorted1 the promisor is released
 from his  engagement1 as having        
unjustly sustained a damage1 by an act  
repugnant  to the nature of human       
liberty1 and to the nature of human     
action1  which ought to be free4        
,this1 it must be admitted1 may         
sometimes happen1 but does not apply to 
all promises made to pirates4 ,for to   
make the person1 to whom a promise  has 
been given1 liable to release the       
engagement1 the promiser himself  must  
have been forced to give the promise    
under impressions of unjust  fear4 ,so  
that if any one has promised a ransom in
 order to redeem a  friend from         
captivity1 he will be bound by his      
promise4 ,for in this  case there was no
 impression of fear1 as he came         
voluntarily to make  the contract4      
,v4 ,a promise too made through the     
compulsion of fear will be binding1     
where it has been ratified by the solemn

 sanction of an oath3 for in  that case 
it is not only one man making an        
engagement to a fellow  creature1 but   
binding himself to ,god by the most     
solemn appeal3  against which neither   
fear nor any other motive can form an   
exception4  ,yet the heir of a promiser 
is not bound by any such obligation3    
because inheritances pass according to  
the rules of human intercourse          
established at the original institution 
of property3 but the divine  right to   
the fulfilment of oaths1 as such1 is not
 included in these4  ,from the above    
arguments a conclusion may be deduced1  
that if any one  violates a pledge given
 to such an enemy either upon oath or   
without  oath1 he will not on that      
account be liable to punishment among   
other  nations1 because from the general
 horror which piracy excites1 nations   
have thought proper to pass over without
 notice the violation of rules  of faith
 towards them4    ,,xi4#gd ,solemn war1 
signifying such as is proclaimed and    

begun on  both sides by authority of the
 sovereign or state1 among its many     
other legal rights1 includes also that  
of giving validity to every  promise1   
which may be conducive to its           
termination1 so that if either  party1  
through an ill-grounded fear of further 
calamities1 has1 even  against his will1
 made promises unfavourable1 or acceded 
to terms  disadvantageous to himself1   
such an engagement will be binding4 ,for
  the law of nations allows belligerent 
powers to alarm each other1 if          
possible1 into submission upon the most 
unequal terms1 in the same  manner1 as  
it gives a sanction to many things not  
strictly equitable  according to natural
 and municipal law4 ,for if such a      
practice had not  been established1     
wars1 which are so frequent1 could never
 have been  brought to a conclusion1 an 
object so much for the interest of      
mankind4    ,these are the rights of war
 which ,cicero says ought to be         
inviolably  preserved with an enemy3 for

 an enemy not only retains his natural  
rights in war1 but certain other rights 
originating in the consent  of nations4 
,yet it does not follow from hence that 
any one1 who has  extorted such a       
promise in unjust war1 can1 consistently
 with piety  and the duties of a good   
man1 retain what he has so received1 nor
 can  he compel another to stand to such
 engagements1 whether upon oath1 or     
not4 ,for the natural and internal      
injustice of such a promise always      
remains the same1 nor can the injustice 
be removed or altered1 till it  has     
received a new and free concurrence from
 the party1 by whom it was  given4      
,,xii4 ,the only impressions of fear1   
that can be lawfully inspired in        
regular war1 are those which are        
approved of by the law of nations4      
,thus no one can avail himself of a     
promise1 extorted from an ambassador    
under impressions of fear excited by the
 seizing of his person4    ,,xiii4 and  
,,xiv4 ,there are two cases1 in which a 

person may not perform  his engagement  
or promise1 without being guilty of     
treachery3 and those  are1 where the    
conditions have not been fulfilled1 or  
some compensation  has been made4 ,for  
in one and the same treaty all the      
clauses seem  connected with each other1
 as a kind of condition expressing the  
intention of one party to fulfil his    
engagement1 if the other shall  do the  
same4 ,therefore ,tullus1 in replying to
 the ,albans invokes  destruction upon  
the head of that people who first       
rejected the just  claims of ambassadors
 demanding restitution1 wishing that all
 the  calamities of war might fall upon 
them4 ,for1 says ,ulpian1 he shall no   
longer be held as a confederate1 who has
 renounced a treaty1 owing to  some     
condition1 on which it was made1 not    
being fulfilled4 ,for which  reason1    
wherever it is intended otherwise1 it is
 usually stated in  express terms1 that 
the violation of any particular clause  
shall not  annul the whole treaty4      

,,xv4 ,the origin of compensation was   
explained in the second book of this    
treatise1#ge where it was said to be the
 power and right of receiving  an       
equivalent1 for some thing belonging to 
us1 which is in the hands  of another1  
or any thing due to us1 which we cannot 
otherwise obtain3  and much more then   
have we a right on the same account to  
detain any  thing which is ,,already    
,,in ,,our ,,power1 whether it be of a  
corporeal or an  incorporeal kind4 ,so  
that we are not obliged to perform a    
promise1 if  it be no more than         
equivalent to a thing of ours which the 
other party  detains4 ,seneca1 in his   
sixth book ,,on ,,benefits1 says that a 
creditor  often becomes under an        
obligation to his debtor1 if he takes   
more than  an equivalent for his debt4  
,for though it may be granted that he   
has  lent money1 yet if by such a loan  
he has obtained the possession of       
lands1 which he never bought1 he changes
 situations with his debtor1  and       

becomes a debtor in his turn4    ,,xvi4 
,it will be the same1 if one of the     
contracting parties owes  as much1 or   
more1 from some other engagement3 and   
the debt cannot  otherwise be obtained1 
than by taking advantage of the present 
contract1 though it has no connection   
with the former debt4 ,but in a  ,,legal
 point of view1 all actions are         
perfectly distinct1 nor can their       
forms1 their grounds1 or their substance
 be confounded2 but certain  cases are  
confined to certain laws1 to which it is
 necessary invariably  to adhere3 one   
law cannot be mixed with another1 but   
every one in the  prosecution of a right
 must tread upon invariable and beaten  
ground4  ,but the law of nations does   
not regard such distinctions1 it allows 
us  to transgress them where there is no
 other means of obtaining our right4    
,,xvii4 and ,,xviii4 ,the same may be   
said too1 where the party exacting a    
promise1 has not contracted any debt by 
engagement1 but has done an  injury to  

the promiser4 ,and whatever is due by   
way of punishment may be  balanced      
against a promise4    ,,xix4 ,if while a
 law-suit is depending1 the parties     
enter into an  agreement of any kind1   
either to pay the costs1 or to make good
 other  damages1 they cannot avail      
themselves both of this agreement1 and  
claim  a further compensation for the   
original matter in dispute4 ,in the same
  manner1 if during the continuance of a
 war the belligerents negotiate  for a  
conclusion of the original dispute1 they
 are supposed thereby  to settle every  
cause of hostility1 nor can they any    
further avail  themselves of the rights 
of war1 so as to enjoy both the         
advantages of  them1 and of negotiation1
 at the same time4 ,for if this were the
 case1  no treaties could ever be       
enforced with certainty4    ,it may be  
asked1 of what nature are the things for
 which a promise of  compensation should
 be given8 ,in answer to which it may be
 observed1  that such a promise or      

engagement may be made in lieu of some  
other  obligation incurred during the   
course of a war3 as for instance1 where 
the breach of a truce has been          
committed1 the rights of an ambassador  
violated1 or any other action done1     
repugnant to the principles  established
 by the law of nations among belligerent
 powers4    ,still it must be observed  
that the parties1 in making             
compensation1  should abstain with the  
utmost caution from infringing upon the 
rights  of a third person1 especially   
where this can be done without          
abandoning  the principles of the law of
 nations1 which makes the effects of    
subjects answerable for the debts of the
 state4 ,besides it is the mark  of a   
dignified mind to adhere to engagements 
even after receiving an  injury4 ,on    
which account the ,indian sage ,jarchas 
commended that king1  who on sustaining 
an injury from a neighbouring and       
confederate power1  said he should not  
think himself released from his sworn   

engagements1  which were solemn acts1   
that no injustice on the part of another
 could  repeal4    ,almost all questions
 relating to pledges of faith given by  
one  belligerent power to another1 may  
be solved upon the principles before    
laid down1 in explaining the nature and 
force of promises in general2  of oaths1
 treaties1 and conventions1 and also in 
explaining the rights  of the           
obligations of kings1 and the method of 
interpreting doubtful  points4 ,but in  
order to remove every doubt and         
difficulty1 perhaps a  brief discussion 
of the most usual and practical topics  
of negotiation  will not be deemed      
tedious4          ,,chapter ,,xx4       
,,on ,,the ,,public ,,faith1 ,,by       
,,which ,,war ,,is ,,concluded2         
,,comprising ,,treaties ,,of  ,,peace1  
,,and ,,the ,,nature ,,of ,,arbitration1
 ,,surrender ,,hostages1 ,,pledges4     
,in monarchies the power of making peace
 a royal prerogative--,in               
aristocracies and democracies1 this     

right belongs to a greater      number  
of persons--,in what manner the public  
dominions or      any part of them may  
be alienated--,how far a peace concluded
      by the king binds the state1 or   
his successors--,property of            
individuals ceded for the benefit of the
 state at the time of      making       
peace--,indemnity to those              
individuals--,losses sustained      in  
war--,no distinction between things     
acquired according to the      law of   
nations and the civil law--,transactions
 of the sovereign      with foreign     
nations deemed valid from motives of    
public      utility--,general rule of   
interpreting the terms of peace--,in    
doubtful cases the former state of      
things supposed to be continued      by 
a treaty of peace--,things restored to  
the state they were      in before the  
war--,independent states1 voluntarily   
joining      one of the belligerent     
powers cannot claim indemnity of the    
other--,general amnesty--,private debts 

subsisting before the war      not      
included therein--,restoration of       
captures--,rules respecting      such   
restorations--,dubious points to be     
interpreted to the      prejudice of the
 party dictating the terms--,distinction
 between      new causes of war1 and the
 breach of a peace--,rupture by any act 
contrary to the terms of peace in       
general--,infraction of a treaty      by
 allies or subjects--,violation of a    
particular treaty--,heads      of       
treaties--,penalties                    
annexed--,unavoidable impediments to the
      fulfilment of a treaty--,peace    
continued at the option of the          
injured party--,relations of amity--,how
 far receiving subjects      and exiles 
may be considered as a breach           
thereof--,victory--,war      concluded  
by arbitration--,arbitrators bound by   
rules of strict      justice--,absolute1
 and conditional surrender--,hostages   
can be      detained for no other than  
the express cause for which they were   

given--,released by the death of the    
party for whom they were                
given--,obligation of pledges--,right of
 redeeming them lost4      ,i4 ,good    
faith1 either expressed or implied1 must
 be the foundation  of every treaty     
between hostile powers4 ,and again the  
faith that is  expressed is either of a 
public or a private nature1 and the     
pledges  given either by the sovereign1 
or inferior authorities in states       
constitute the public faith4 ,it is1 by 
such pledges given on the part  of the  
sovereign power alone1 that peace can be
 concluded1 or the  rights of war       
enforced4 ,in the termination of every  
war1 either the  principal1 or accessory
 causes are to be considered4 ,treaties 
are in  general regarded as the         
principal instrument1 by which wars are 
ended1  and the mediation1 or decision  
of a third person or power is deemed a  
secondary or accessory means4    ,,ii4  
,the person1 who has authority to begin 
a war1 is the only one to  whom the     

right of making peace can properly      
belong1 according to the  general maxim1
 that every one is the best judge in the
 management of  his own affairs4 ,from  
hence it follows1 that public war can be
 made by  the sovereign power alone on  
each side3 a right which in every kingly
  government is very justly vested in   
the crown4    ,,iii4 and ,,iv4 ,in      
popular or aristocratic forms of        
government1 the  right of making war1 or
 concluding peace1 is generally lodged  
in some  public council or body1 where a
 majority of voices may form treaties1  
conventions1 or resolutions1 which will 
be binding upon the dissentient  part of
 such council4 ,and all who are bound by
 a peace1 whether  approving it or not  
are entitled to its benefits4    ,v4 ,in
 examining those objects1 which form the
 most material part of  treaties1 we may
 observe1 that kingdoms are not so much 
a patrimony1  which may be alienated at 
pleasure1 as a trust1 placed in the     
hands of  the sovereign for the benefit 

of his people4 ,indeed kings themselves 
are aware of this1 even before the crown
 descends upon their heads1 and  they   
receive it upon condition of adhering to
 such sacred obligations4    ,nor can   
such alienations ever be made1 so as to 
be attended with  consequences like     
those of private contracts1 or to render
 the goods  and effects of subjects     
answerable for such engagements4 ,for if
 that  were the case1 the fundamental   
laws of the kingdom1 prohibiting such   
alienations1 would be of no effect4     
,to render the alienation of the whole  
public dominion valid1 the  consent of  
the constituted authorities of the state
 is requisite4  ,and indeed to confirm  
the transfer of any particular portion1 
the  consent of the whole body as well  
as of that particular member will  be   
necessary3 for otherwise such alienation
 would be like the violent  separation  
of a limb from the natural body4    ,a  
whole people may in a case of extreme   
necessity transfer themselves  to the   

dominion of another1 a right which      
undoubtedly was reserved at  the        
original formation of society4          
,neither is there any thing to prevent a
 king from alienating his  patrimonial  
and private possessions4 ,yet there may 
be parts of the  royal dominion1 which  
the sovereign cannot alienate from the  
crown1  especially1 if he has received  
it upon condition of making no personal 
appropriation of any thing belonging    
thereto4    ,there are two ways in which
 the possessions of the crown may become
  the patrimony of the king1 either as  
separable or inseparable parts of  the  
kingdom4 ,in the latter case they can   
only be transferred with the  kingdom   
itself1 but in the former1 they may be  
alienated by themselves4  ,and where the
 crown is not patrimonial and           
hereditary1 the restrictions  upon the  
sovereign in this respect are much      
greater4    ,,vi4 ,a nation and a king's
 successors are bound by his            
engagements1  in proportion to the      

power1 which he derives from the        
constitution1  of making such           
engagements4 ,for though this power may 
not be  absolutely unlimited1 yet it    
ought not to be clogged with unnecessary
  restrictions4 ,it should be such as   
may enable him to exercise his          
discretion and judgment on proper       
occasions for the benefit of his        
people4    ,the case will be different1 
where a king's power over his subjects  
is  like that of a master over his      
household1 more than of a sovereign     
over his state1 as where he has entirely
 subjugated a people1 or where  his     
controul over their property is         
absolute4 ,thus ,pharaoh purchased  all 
the land in ,egypt1 and others have     
admitted strangers into their           
territories allowing them to hold lands 
upon such conditions4 ,for here1  there 
is another right in addition to that of 
a sovereign1 and it is  a right1 which  
sovereignty alone without conquest could
 never have  conferred4    ,,vii4 ,the  

right of sovereigns to dispose of the   
effects of individuals1  in order to    
make peace1 is often a disputed point1  
nor can they  exercise this right over  
the property of subjects in any other   
manner  than as sovereigns4#gf    ,the  
property of subjects is so far under the
 eminent controul of the  state1 that   
the state or the sovereign who          
represents it1 can use  that property1  
or destroy it1 or alienate it1 ,,not    
,,only ,,in ,,cases ,,of  ,,extreme     
,,necessity1 which sometimes allow      
individuals the liberty of  infringing  
upon the property of others1 but on all 
,,occasions1 where  the public good is  
concerned1 to which the original framers
 of society  intended that private      
interests should give way4 ,but when    
that is the  case1 it is to be observed1
 the state is bound to repair the losses
 of  individuals1 at the public expence1
 in aid of which the sufferers have     
contributed their due proportion4 ,nor  
will the state1 though unable to  repair

 the losses for the present1 be finally 
released from the debt1  but whenever   
she possesses the means of repairing the
 damages1 the  dormant claim and        
obligation will be revived4    ,,viii4  
,there must be some hesitation in       
admitting the opinion of  ,ferdinand    
,vasquez1 who maintains that the state  
is not bound to repair  the losses1     
which are occasioned to individuals in  
the course of war1  as those are        
accidents permitted by the rights of    
war4    ,for those rights regard the    
relation of foreign states and enemies  
to  each other1 but bear no reference to
 the disputes of subjects among         
themselves1 who1 being united in the    
same cause1 ought to share the  common  
losses1 which happen to them in         
supporting the privileges of  their     
society4 ,it is a rule likewise         
established by the civil law1 that  no  
action can be brought against the state 
for the losses sustained in  war1 as    
every one is thereby induced to defend  

his own property with  more earnestness 
and spirit4#gg    ,,ix4 ,some make a    
distinction between the property which  
subjects are  entitled to from the law  
of nations and that which they possess  
by the  authority of the civil law1     
allowing the king a more extensive      
controul  over the latter1 even to the  
power of taking it without cause or     
compensation1 which is not the case with
 property of the former kind4  ,but this
 is an improper distinction4 ,for       
whatever may be the origin of  property1
 it is always attended with peculiar    
effects according to the  law of nature3
 so that it cannot be taken away for any
 other reasons  than those inherent in  
the nature of property itself1 or       
derived from  some act of the owners4   
,x4 ,the prohibition respecting the     
property of individuals being given  up1
 except for some public advantage1 is a 
matter resting entirely  between a      
sovereign and his subjects1 and a       
compensation for losses is  an affair   

between the state and individuals4 ,but 
in all transactions  between a king and 
foreigners1 the act of the king is      
sufficient to  give them ,,national     
validity1 not only out of respect to his
 personal  dignity1 but according to the
 law of nations1 which renders the      
effects  of subjects responsible for the
 acts of the sovereign4    ,,xi4 ,in    
interpreting treaties of peace1         
favourable circumstances  are always to 
be taken in their utmost latitude1 and  
unfavourable  circumstances to be       
limited as strictly as possible4#gh     
,regarding purely the law of nature1 the
 most favourable construction  is that1 
whereby every one is restored to his own
 property and  possessions4 ,therefore  
where the articles of a treaty are      
ambiguous1  the construction should go  
so far1 as to grant the party1 who has  
evidently justice on his side1 the      
object for which he went to war1 and    
likewise indemnity for the losses which 
he has sustained4    ,but it is not     

allowable that either party should gain 
more than an  indemnity1 or demand any  
thing by way of punishment1 which is of 
an  odious nature4    ,as in making     
peace1 it scarcely ever happens that    
either party will  acknowledge the      
injustice of his cause1 or of his       
claims1 such a  construction must be    
given1 as will equalize the pretensions 
of each  side1 which may be             
accomplished1 either by restoring the   
disputed  possessions to their former   
situation1 or by leaving them in the    
state1  to which the war has reduced    
them4    ,,xii4 ,of these two methods1  
in a doubtful case1 the latter is       
preferred1  as being the more easily    
adjusted1 and occasioning no further    
change4  ,from hence the right of       
postliminium belongs to such prisoners1 
as are  expressly included in the       
treaty4 ,neither are deserters to be    
given up1  unless it be so agreed4 ,for 
by the laws of war any power is allowed 
to  receive deserters1 and even to      

enlist them in his own army4    ,by such
 agreement other things remain in the   
hands of the possessors1  by which is   
not meant a civil1 but a natural        
possession3 for in war  ,,bare          
,,possession is sufficient1 nor is any  
other kind looked for4  ,and lands are  
said to be so possessed1 when inclosed  
or defended by  fortifications1 for a   
temporary occupation by an encampment is
 not  regarded in this case4 ,hence     
,demosthenes in his speech for          
,ctesiphon1  says that ,philip was      
anxious to make himself master of all   
the places  he could seize1 as he knew  
that upon the conclusion of a peace1 he 
should retain them4    ,incorporeal     
rights cannot be held but by the        
occupation of the things  with which    
they are connected2 as for instance1 the
 services of lands1  or through means of
 the persons1 to whom they belong3 but  
the holders  of such rights lose them1  
when an enemy has become master of the  
country4    ,,xiii4 ,in that other mode 

of treaty1 whereby possession1 that has 
been  disturbed in the course of a war1 
is restored1 it is proper to observe    
that the last possession1 immediately   
before the war began1 is that1  which is
 always meant1 so that the individuals  
then unjustly ejected1  may have        
recourse to law1 either to obtain       
possession by a provisional  decree1 or 
to make good their claim4    ,,xiv4 ,if 
an independent people ,,voluntarily and 
,,spontaneously place  themselves under 
the controul and protection of one of   
the belligerent  powers1 such a people  
cannot be included among those entitled 
to  restitution1 which only belongs to  
those who have suffered losses by       
violence1 through fear1 or any lawful   
stratagem of war4 ,thus when  peace was 
made among the ,grecian states1 the     
,thebans retained ,plataea1  observing  
that they neither owed their possession 
of it to violence1  nor treachery1 but  
to the free surrender of those1 to whom 
it belonged4    ,,xv4 ,unless there is  

an express stipulation to the contrary1 
it is  understood that1 in all treaties 
of peace1 there is an implied assent    
that no actions are to be brought for   
losses occasioned by the  accidental    
calamities of war1 either to states or  
individuals4 ,for  those are natural    
consequences of a state of hostilities3 
and it is  supposed that in doubtful    
cases1 no belligerent would consent to  
be  convicted of injustice4    ,,xvi4   
,the debts1 owing to individuals1 at the
 beginning of a war1 are  not to be     
thought thereby discharged4 ,for they   
are not things acquired  by the laws of 
war3 for war only prevents the claim to 
them from being  prosecuted1 but by no  
means releases the obligation4 ,so that 
when the  impediment of war is removed1 
such debts retain their original force4 
,for though it ought not to be presumed 
that any one should easily  be deprived 
of a right subsisting before the war1   
yet this is to be  understood of the    
rights arising out of the foundation of 

property1  whereby a community and      
equality of goods was abolished4 ,for   
states and  governments1 says ,cicero1  
were originally and principally designed
 to  preserve to every one the          
possession of his own property4         
,,xvii4 ,the right to claim lands or    
goods of any kind1 by way of            
,,punishment1 is not of equal force with
 the above rules4 ,for in  transactions 
and treaties of that kind between kings 
and sovereign  states1 all claims of    
that kind seem and indeed ought to be   
relinquished1 otherwise peace would be  
no peace1 if the old and  original      
causes of the war were allowed to remain
 and be revived4 ,and  the most latent  
and remote causes are supposed to be    
included in the  most ,,general ,,terms1
 in treaties of peace1 whereby they are 
sunk in  oblivion4    ,,xviii4 ,the     
rights of individuals to penalties are  
not supposed to be  abandoned1 resting  
entirely upon different grounds3 because
 they may  be decided by legal tribunals

 without appealing to the sword4 ,yet   
as our rights of this sort are not of   
the same kind with those of  absolute   
property1 and as penalties have always  
something odious in  their nature1 any  
faint verbal conjecture will be thought 
a sufficient  presumption of their being
 remitted4    ,,xix4 ,the objection made
 against taking away any rights1 that   
existed  before the war1 applies chiefly
 to the rights of ,,individuals4 ,for   
where the words of a treaty supply any  
probable conjecture1 it is  most natural
 to suppose that ,,kings and ,,nations  
have more readily  relinquished certain 
rights1 especially in matters1 where    
those rights  are not clearly and fully 
ascertained4 ,so that1 giving the most  
favourable construction to their        
conduct1 they are supposed to have  been
 animated with the noble desire of      
rooting up and destroying all  the seeds
 of war4    ,,xx4 ,all captures1 made   
after a treaty is finished1 must        
evidently be  restored4 ,for the treaty 

puts an end to all the rights of war4   
,,xxi4 ,but in treaties relating to the 
restoration of things taken  in war1 a  
more extensive interpretation must be   
given1 where the  advantages are mutual 
than where they incline only to one     
side4#gi    ,in the next place all the  
parts of a treaty relating to persons   
are to  be interpreted more favourably  
than those relating to things3 and among
  those relating to things1 priority is 
given to lands before moveable  effects1
 and also among these1 such as are in   
the hands of the state  are held in more
 consideration than the possessions of  
individuals4 ,and  again1 among things  
in the possession of individuals1 those 
are more  favoured which are held under 
a beneficial title1 than those which are
  loaded with incumbrances1 as things   
held by money payments1 or by dower4    
,,xxii4 ,the person1 to whom any thing  
is ceded by a treaty of peace1  is      
entitled to the produce and fruits of   
it1 from the time of such  cession1 and 

not farther back3 a point maintained by 
,augustus ,caesar in  opposition to     
,sextus ,pompey1 who1 upon ,peloponnesus
 being ceded to him1  claimed also the  
tributes and revenues1 that were due for
 former years4    ,,xxiii4 ,the names of
 countries are to be taken according to 
the usage of  the present time1 not so  
much according to the popular           
acceptation1 as  to that of men of      
science1 by whom those subjects are     
generally treated  of4    ,,xxiv4 ,these
 rules also are of frequent use1        
whenever there is a  reference to an    
antecedent1 or to an ancient treaty4    
,for in that case  the qualities and    
conditions of the latter treaty are     
considered  as a repetition of those    
expressed in the former4--,and the      
person  contracting is to be considered 
as having really performed his part of  
the engagement1 which he certainly would
 have done1 had he not been  prevented  
by the party with whom he is engaged in 
dispute4    ,,xxv4 ,what some allege in 

excuse for a short delay in the         
execution of a  treaty is not to be     
admitted as true1 except some unforeseen
 necessity  has occasioned the          
impediment4 ,for though some of the     
canon-laws may  favour such a plea1 that
 is not surprising1 considering they are
 framed  solely with the view of        
promoting charity among ,christians4    
,but in this  question relating to the  
interpretation of treaties1 it is not so
 much  our business to lay down what is 
best and properest for every one to  do1
 nor even to state what religion and    
piety require1 as to consider  what     
every one may be compelled by legal     
authority to do4    ,,xxvi4 ,in doubtful
 matters it is usual for an             
interpretation to be given  more        
prejudicial to the party who has        
dictated the terms1 than to the  other1 
because in general he is the more       
powerful3 in the same manner1  in       
explaining the terms of a bargain1 a    
construction is generally given  against

 the seller3 as he may blame himself for
 not having spoken more  clearly1 and   
openly4 ,whereas the other1             
comprehending the terms in more         
meanings than one1 might fairly select  
that most favourable to himself4        
,,xxvii4 ,it is a matter of frequent    
dispute what constitutes the breach  of 
a peace4 ,for it is not the same thing  
to break a peace1 as to  furnish new    
grounds and causes of war4 ,there is a  
great difference  between these things1 
both as to the penalty incurred by the  
aggressor1  and as to the aggrieved     
party being1 in other respects1 released
 from  his engagements4    ,there are   
three ways1 in which a peace may be     
broken1--either by doing  something     
contrary to the very essence of ,,all   
peace1--or something in  violation of   
the ,,express terms of a ,,particular   
peace1--or something  contrary to the   
,,effects1 which are intended to arise  
from every peace4    ,,xxviii4 ,a thing 
is done contrary to the very essence of 

all peace1  when hostile aggressions are
 committed without any new grounds of   
war4  ,but where any specious pretext   
can be assigned for taking arms1 it is  
better it should be supposed purely an  
act of injustice1 than an act of        
injustice accompanied with perfidy4 ,it 
is hardly necessary to quote the  words 
of ,thucydides1 who says1 it is not the 
party1 who repels force  by arms1 but   
the power who first makes the attack1   
that violates a  peace4    ,having laid 
down these rules1 it remains to be      
considered1 who are the  ,,aggressors1  
and who are the ,,aggrieved ,,persons1  
in the breaking of a  peace4    ,,xxix4 
,there are some1 who think that a peace 
is broken1 when even  those1 who have   
been allies do any of these things4 ,nor
 indeed can it  be denied1 that such an 
agreement ,,may be made1 for one ally to
 become  liable to punishment for the   
actions of another1 and for a peace to  
be  deemed ratified and permanent only  
upon conditions1 partly arbitrary1  and 

partly casual4    ,but it is hardly     
credible1 unless there is the clearest  
evidence of it1  that peace is ever     
concluded upon such terms4 ,for it is   
contrary to  all rule1 and repugnant to 
the common wishes of those1 who make    
peace4  ,therefore those1 who have      
committed hostile aggressions1 without  
the  assistance of others1 will be      
deemed breakers of the peace1 against   
whom alone the injured party will have a
 right to take arms4    ,,xxx4 ,if      
subjects have committed any act of      
hostility without authority  and        
commission from the state1 it will form 
a proper subject of  inquiry1 whether   
the state can be judged responsible for 
the acts of  individuals3 to constitute 
which responsibility1 it is evident that
 a  knowledge of the fact1 power to     
punish it1 and having neglected to do   
so1 are requisite4    ,a formal notice  
given to the sovereign of the offending 
subjects is  supposed to amount to a    
knowledge of the fact1 and it is        

presumed that  every sovereign is able  
to controul and punish his own subjects1
 unless  there be some defect in his    
authority3 and a lapse of time1 beyond  
what  is usually taken for the          
punishment of civil offences in every   
country1  may be construed into wilful  
neglect4 ,and such neglect amounts to a 
sanction of the offence4    ,,xxxi4 ,it 
is likewise frequently made a subject of
 inquiry1 whether a  state is answerable
 for the conduct of any of her people1  
who do not  take arms by her authority1 
but serve in the armies of some other   
power engaged in war4 ,the ,cerites1 in 
,livy1 clear themselves upon this       
principle1 that it was not by their     
authority their people bore arms4  ,and 
it is a well-founded opinion that no    
such permission ought to be  deemed as  
given1 unless it appear from probable   
reasons that it was  intended it should 
be granted3 a thing sometimes done1     
according to  the example of the ancient
 ,aetolians1 who thought they had a     

right to  deprive every plunderer of his
 spoils4 ,a custom the force of which   
,polybius expresses in the following    
words1 when other powers1 friends  and  
allies of the ,aetolians1 are at war    
with each other1 the ,aetolians  may    
nevertheless serve in the armies on     
either side1 destroying and  spoiling   
their respective countries4    ,,xxxii4 
,again1 a peace ought to be deemed      
broken1 not only by any act of  violence
 done to the body politic itself1 but to
 any of the subjects1  without new      
grounds of war4 ,for peace is made with 
a view to the  security of every        
individual subject3 as the state in     
making peace acts  for the whole1 and   
for all its parts4    ,indeed even if   
new grounds of war should arise1 every  
one may1 during  the continuance of     
peace1 defend himself and his property4 
,for it is a  natural right to repel    
force by force3 a right which it cannot 
easily  be supposed that those1 who are 
upon a footing of equality have ever    

renounced4    ,but to practise revenge1 
or use violence in recovering things    
taken  away will not be lawful1 except  
where justice is denied4 ,justice may   
admit of some delay3 but the other      
method demands prompt execution1 and    
therefore should not be undertaken but  
in extreme emergency4 ,but if  the      
subjects of any country persist in a    
course of uniform crime1 and            
aggression1 repugnant to all natural and
 civil law1 in defiance of the          
authority of their own government1 so   
that the hand of justice cannot  reach  
them1 it will be lawful for any one to  
deprive them of their  spoils1 and to   
exercise upon them the same rigour1 as  
if they were  delivered up to           
punishment4 ,but to attack other        
innocent persons on  that account is a  
direct violation of peace4    ,,xxxiii4 
,any act of violence also offered to    
allies1 constitutes a  breach of the    
peace1 but they must be such allies as  
are comprehended  in the treaty4    ,the

 same rule holds good1 even if the      
allies themselves have not made  the    
treaty1 but others have done so on their
 behalf3 since it is  evident that those
 allies regarded the peace as ratified  
and valid4 ,for  they are looked upon as
 enemies1 till it is certain they have  
consented  to the ratification4         
,other allies1 or connections1 who are  
neither subjects nor named in  the      
treaty of peace1 form a distinct class1 
to whom any violence done  cannot be    
construed into an act of breaking the   
peace4 ,yet it does not  follow that war
 may not be undertaken on such an       
account1 but then it  will be a war     
resting entirely upon new grounds4      
,,xxxiv4 ,a peace is broken by doing any
 thing contrary to the express  terms of
 it2 and by this is likewise meant the  
non-performance of  engagements4        
,,xxxv4 ,nor can we admit of any        
distinction between articles of greater 
or minor importance4    ,for ,,all the  
articles of a treaty are of sufficient  

magnitude to require  observance1 though
 ,christian charity may overlook the    
breach of them  upon due                
acknowledgement4 ,but to provide greater
 security for the  continuance of a     
peace1 proper clauses will be annexed to
 the minor  articles1 stating that any  
thing done against them shall not be    
deemed  an infraction of the treaty3 or 
that mediation shall be adopted in      
preference to having recourse to arms4  
,,xxxvi4 ,this seems to have been       
plainly done in treaties1 where any     
special penalty was annexed4 ,a treaty  
indeed may be made upon1 terms  allowing
 the injured party his option either of 
enacting the penalty1  or receding from 
his engagement3 but the nature of the   
business rather  requires the method of 
mediation4 ,it is evident and proved    
from the  authority of history1 that one
 of the parties1 who has not fulfilled  
his engagement1 owing to the neglect of 
the other to do so1 is by  no means     
guilty of breaking the peace3 as his    

obligation was only  conditional4       
,,xxxvii4 ,if there is any unavoidable  
necessity to prevent one party  from    
fulfilling his engagement1 as for       
instance1 if a thing has been           
destroyed1 or carried off1 by which the 
restoration of it has become            
impossible1 a peace shall not thereby be
 deemed broken1 the continuance  of it  
not depending upon ,,casual conditions4 
,but the other party may  have his      
option1 either to prefer waiting1 if    
there is any reason to  hope that the   
engagement may be fulfilled at some     
future period1 or  to receive an        
equivalent1 or to be released1 on his   
side from some  corresponding article of
 the treaty4    ,,xxxviii4 ,it is       
honourable1 and laudable to maintain a  
peace1 even after  it has been violated 
by the other party3 as ,scipio did1     
after the many  treacherous acts of the 
,carthaginians4 ,for no one can release 
himself  from an obligation by acting   
contrary to his engagements4 ,and though

 it  may be further said that the peace 
is broken by such an act1 yet the       
breach ought to be taken in favour of   
the innocent party1 if he thinks  proper
 to avail himself of it4    ,,xxxix4    
,lastly1 a peace is broken by the       
violation of any special and  express   
clause in the treaty4    ,,xl4 ,in the  
same manner1 those powers1 who commit   
unfriendly acts1 are  guilty of breaking
 that peace1 which was made solely upon 
condition  of amicable relations being  
preserved4 ,for what1 in other cases1   
the  duties of friendship alone would   
require1 must here be performed by the  
law of treaty4    ,and it is to treaties
 of this kind that many points may be   
referred1  which are discussed by legal 
writers1 relating to injuries done      
without force of arms1 and to the       
offences of insults4 ,according to  this
 principle1 ,tully has observed1 that   
any offence committed after  a          
reconciliation is not to be imputed to  
neglect1 but to wilful  violation1 not  

to imprudence1 but to treachery4    ,but
 here it is necessary1 if possible1 to  
exclude from the account  every charge  
of an odious kind4 ,so that an injury   
done to a relation  or subject of the   
person1 with whom a treaty of peace has 
been made1  is not to be deemed the     
same1 as one done to himself1 unless    
there are  evident proofs that1 through 
them1 an attack upon him was intended4  
,and  an invasion of another's rights is
 often to be ascribed to new motives  of
 rapacity1 rather than to those of      
treachery4    ,atrocious menaces1       
without any new grounds of offence1 are 
repugnant  to all terms of amity4 ,any  
one may assume this threatening posture1
 by  erecting new fortifications in his 
territory1 as a means of annoyance      
rather than offence1 by raising an      
unusual number of forces3 when it is    
evident that these preparations can be  
designed against no one1 but the  power 
with whom he has concluded peace4       
,,xli4 ,nor is it contrary to the       

relations of amity to receive individual
  subjects1 who wish to remove from the 
dominions of one power to those  of     
another4 ,for that is not only a        
principle of natural liberty1 but       
favourable to the general intercourse of
 mankind4 ,on the same grounds  a refuge
 given to exiles may be justified4 ,but 
it is not lawful to  receive whole      
towns1 or great bodies1 forming an      
integral part of the  state4 ,nor is it 
more allowable to receive those1 who are
 bound to the  service of their own     
state by oath or other engagement4      
,,xlvi4#hj ,there are two kinds of      
arbitration1 the one of such a nature   
that it must be obeyed whether the      
decision be just or unjust1 which1      
,proculus says1 is observed when1 after 
a compromise1 recourse is had to        
arbitration4    ,the other kind of      
arbitration is where a matter ought to  
be left to  the decision of a person1 in
 whose integrity confidence may be      
placed1  of which ,celsus has given us  

an example in his answer1 where he says1
  though a freedman has sworn1 that he  
will do all the services1  which his    
patron may adjudge1 the will of the     
patron ought not to be  ratified1 unless
 his determination be just4    ,this    
interpretation of an oath1 though       
conformable to the ,roman laws1  is by  
no means consistent with the simplicity 
of language considered by  itself4 ,for 
the justice of the case remains the     
same1 in whatever way  an arbiter is    
chosen1 whether it be to reconcile      
contending parties1 a  character1 in    
which we find the ,athenians acting     
between the ,rhodians  and ,demetrius1  
or to make an absolute decree4          
,although the civil law may decide upon 
the conduct of such arbiters to  whom a 
compromise is referred1 so as to allow  
of an appeal from their  decrees1 or of 
complaints against their injustice1 this
 can never take  place between kings and
 nations4 ,for here there is no superior
 power1  that can either rivet or relax 

the bonds of an engagement4 ,the decree 
therefore of such arbiters must be final
 and without appeal4    ,,xlvii4 ,with  
respect to the office of an arbiter or  
mediator1 it is  proper to inquire1     
whether the person has been appointed in
 the  character of a judge1 or with     
powers more extensive and discretionary 
than legal powers4 ,aristotle says that 
an equitable and moderate man  will have
 recourse to arbitration rather than to 
strict law1 ,,adding  ,,as ,a ,,reason1 
because an arbitrator may consider the  
equity of the  case1 whereas a judge is 
bound by the letter of the law4         
,therefore  arbitration was introduced  
to give equity its due weight4          
,equity does not signify in this place1 
as it does elsewhere1 that  part of     
justice1 which gives a strict           
interpretation of the general           
expressions of the law1 according to the
 intention of the law-giver4  ,for that 
is left to the judge4 ,but it includes  
every thing1 which it  is more proper to

 do than to omit1 even beyond what is   
required by the  express rules of       
justice4--,such kind of arbitration     
being common among  individuals and     
subjects of the same empire1 it is      
recommended by ,st4  ,paul as a practice
 peculiarly proper for ,christians4 ,yet
 in doubtful  cases it ought not to be  
presumed that such extensive powers are 
granted4 ,for where there is any        
obscurity it abridges this latitude  of 
decision3 and especially in contested   
matters1 between independent            
sovereigns1 who1 having no common judge1
 are supposed to bind the  mediators1   
and arbitrators1 whom they chuse1 by the
 strictest rules of  law4    ,,xlviii4  
,it is to be observed that arbitrators  
chosen by nations or  sovereign princes 
may decide upon the matter in dispute1  
but not confer  a possession1 which is a
 matter that can only be decided by     
established  rules of civil law1 for by 
the law of nations the right of         
possession  follows the right of        

property4 ,therefore while a cause is   
pending1 no  innovation ought to be     
made1 both to prevent partiality and    
prejudice1  and because1 after          
possession has been given1 recovery is  
difficult4  ,livy in his account of some
 disputed points between the people of  
,carthage and ,masinissa says1 the      
,ambassadors did not change the right   
of possession4    ,,xlix4 ,there is     
another kind of arbitration1 which takes
 place1 when any  one makes an absolute 
surrender of himself and all his rights 
to an  enemy or foreign power4 ,but     
still a distinction ought to be made1   
even  here1 between the bounds of right 
and wrong1 limiting the submission of   
the vanquished1 on the one hand1 and the
 authority of the conqueror1 on  the    
other1 to a certain degree4    ,for     
there are particular duties1 which ought
 to be observed in the  exercise of     
,,every right4 ,taking the right of the 
conqueror in its  literal meaning and   
full extent1 it is true that he is      

entitled to  impose ,,any terms upon the
 conquered1 who is now placed1 by the   
external  laws of war1 in a situation to
 be deprived of every thing1 even       
personal liberty or life1 much more     
then1 of all his property1 either  of a 
public or private kind4    ,l4 ,the     
first object of a conqueror should be to
 avoid committing  any act of injustice1
 or using any rigour1 except the        
demerits and  atrocity of the enemy     
require it2 to take nothing but by way  
of lawful  punishment4 ,observing these 
bounds1 as far as security allows1 it   
is always laudable to incline to        
moderation and clemency4 ,sometimes     
even circumstances may require such a   
line of conduct1 and the best           
conclusion of any war is that1 which    
reconciles all contending claims  by a  
fair adjustment1 and a general amnesty4 
,the moderation and  clemency to which  
the vanquished appeal1 are by no means  
an abolition  but only a mitigation of  
the conqueror's absolute right4    ,,li4

 ,there are conditional surrenders1     
reserving to the individuals1  certain  
personal privileges1 and remains of     
their property1 and to the  state1      
certain parts of its constitution4      
,,lii4 ,hostages and pledges may be     
considered as an appendage to  treaties4
 ,and some of those hostages are a      
voluntary surrender1 and  others given  
by authority of the state as a security4
 ,for the sovereign  has the same power 
over the persons and actions of his     
subjects1 as  over their property4 ,but 
the state or its ruler will be bound to 
recompense individuals or their         
relatives for any inconveniences they   
may sustain4    ,,liii4 ,though the law 
of nations may in its literal rigour    
allow of  putting hostages to death1 it 
can never conscientiously be enforced1  
but where they have committed crimes    
deserving of capital punishment4        
,neither can they be made slaves4       
,indeed the law of nations permits  them
 to leave their property to their heirs1

 although by the ,roman law  provision  
was made for confiscating it to the     
state4    ,,liv4 ,if it should be asked 
whether hostages may lawfully make their
  escape3 it may be answered in the     
negative1 especially if1 at first1 or   
afterwards1 they have pledged their     
faith to remain1 upon condition of      
being prisoners at large4 ,but it does  
not appear that states so much  intended
 to impose a hardship upon their        
subjects by forbidding their  escape1 as
 to give the enemy security for the     
performance of their  engagements4      
,,lv4 ,the obligation of hostages is of 
an odious nature1 as being  unfriendly  
to personal liberty1 and arising from   
the act of another4  ,therefore a strict
 interpretation must be given to such   
engagements1  so that hostages delivered
 on one account cannot be detained on   
any  other1 nor for any contract1 where 
hostages are not required4 ,but if  in  
another case there has been any         
violation of good faith1 or any  debt   

contracted1 hostages may be detained1   
not as hostages1 but in  the capacity of
 subjects1 whom the law of nations makes
 liable to be  seized and detained for  
the acts of their sovereigns4 ,to guard 
against  which1 provision may be made by
 additional clauses for the restoration 
of hostages1 whenever the engagement for
 which they were delivered has  been    
fulfilled4    ,,lvi4 ,whoever has been  
delivered as a hostage for other        
prisoners1 or  for the redemption of    
other hostages1 will naturally be       
released upon  the death of those       
persons4 ,for by death the right of the 
pledge is  extinguished in the same     
manner as by the ransom of a prisoner4  
,and  therefore1 according to ,ulpian1  
as a ,,personal debt is confined to him1
  who has contracted it1 so one person1 
being substituted for another1  cannot  
be detained any longer than while the   
obligation of that other  continues4    
,,lvii4 ,the decision1 whether hostages 
can be detained upon the death of  the  

sovereign1 by whom they were delivered1 
must depend upon the nature  of the     
engagements1 which he has made4 ,if they
 are ,,personal1 they  continue in force
 only during his natural life1 but if   
they are what  are called ,,real or more
 ,,permanent treaties1 they pass with   
all their  consequences to his          
successors4 ,for ,,accessory articles   
cannot authorise  any deviation from the
 ,,general rule of interpreting the     
fundamental and  principal points of a  
treaty1 but the accessory articles      
themselves  ought rather to be explained
 in conformity to those general rules4  
,,lviii4 ,a cursory observation may be  
made1 that hostages are sometimes       
considered1 not as appendages1 but as   
forming the principal part of an        
engagement1 where any one is bound not  
for himself1 but for another1  and1 in  
case of non-performance1 being obliged  
to pay damages1 his  hostages or        
sureties are answerable in his          
stead4--,there is not only  some thing  

of harshness1 but even injustice in the 
opinion that  hostages may be bound for 
the conduct of another even without     
their own  consent4    ,,lix4 ,pledges  
have some characteristics in common with
 hostages1 and  some peculiar to        
themselves4 ,it is a common             
characteristic of both to  be detained  
for something else that is due1 except  
where public faith  is given1 and       
provision made to the contrary4 ,pledges
 may be detained  with greater latitude 
than hostages2 which is one of their    
peculiar  characteristics1 there being  
less of odium in the former case than in
  the latter3 ,,things being of a nature
 more proper for detention than         
,,persons4    ,,lx4 ,no time can bar the
 redemption of a pledge1 whenever the   
engagement  for which it was given is   
fulfilled4 ,for it is never to be       
presumed  that engagements proceed from 
new causes1 when old and known causes   
can be assigned4 ,if a debtor therefore 
has forborne to redeem a pledge1  we may

 still suppose that he has not abandoned
 his original engagement1  unless there 
be clear proof to the contrary3 as if1  
for instance1  though desirous of       
redeeming it1 he has been prevented1 or 
suffered a  space of time to elapse     
unnoticed1 that would be requisite to   
imply his  consent4          ,,chapter  
,,xxi4    ,,on ,,faith ,,during ,,the   
,,continuance ,,of ,,war1 ,,on ,,truces1
 ,,safe-,,conducts1 ,,and  ,,the        
,,redemption ,,of ,,prisoners4          
,truces of an intermediate denomination 
between peace and war--,origin      of  
the word--,new declaration of war not   
necessary after a      truce--,time from
 whence a truce and all its             
correspondent      obligations and      
privileges commence--,a retreat may be  
made1 or      fortifications repaired   
during a truce--,distinction respecting 
the occupying of places--,the case of a 
person prevented from      making his   
retreat1 and taken in the enemy's       
territories at      the expiration of a 

truce1 considered--,express terms and   
consequences of a truce--,breach of a   
truce by one party justifies      a     
renewal of war by the other--,penalty   
annexed--,truce broken      by the acts 
of individuals--,rights belonging to    
safe-conducts      without a            
truce--,persons in a military capacity  
how far      allowed the benefit of a   
safe-conduct--,privileges of goods      
arising from thence--,attendants of the 
person protected by a                   
safe-conduct--,safe-conduct does not    
expire upon the death of      the       
grantor--,safe-conduct given to continue
 during the pleasure      of the        
grantor--,protection thereof extending  
beyond his own                          
territory--,redemption of prisoners     
favoured1 and not to be      prohibited 
by law4      ,i4 and ,,ii4 ,in the midst
 of war there are certain points        
generally  conceded by the belligerent  
powers to each other1 which ,tacitus    
and ,virgil call the intercourse of war1

 and which comprehend  truces1          
safe-conducts1 and the redemption of    
prisoners4--,truces are  conventions1 by
 which1 even during the continuance of  
war1 hostilities  on each side cease for
 a time4 ,,during ,,the ,,continuance   
,,of ,,war2 for1 as  ,cicero says1 in   
his eighth ,philippic1 between peace and
 war there is  no medium4 ,by war is    
meant a state of affairs1 which may     
exist even  while its operations are not
 continued4 ,therefore1 as ,gellius has 
said1  a peace and a truce are not the  
same1 for the war still continues1      
though fighting may cease4 ,so that any 
agreement1 deemed valid in the  time of 
war1 will be valid also during a truce1 
unless it evidently  appears that it is 
not the state of affairs1 which is      
considered1 but  the commission of      
particular acts of hostility4 ,on the   
other hand1 any  thing1 agreed to1 to be
 done1 when peace shall be made1 cannot 
take  place in consequence of a truce4  
,there is no uniform and invariable     

period fixed for the continuance of a   
truce1 it may be made for  any time1    
even for twenty1 or thirty years1 of    
which there are many  instances in      
ancient history4 ,a truce1 though a     
repose from war1 does  not amount to a  
peace1 therefore historians are correct 
in saying that  a peace has often been  
refused1 when a truce has been granted4 
,,iii4 ,after a truce a new declaration 
of war is not necessary4    ,for upon   
the removal of a temporary impediment1  
the state of warfare  revives in full   
force1 which has only been lulled       
asleep1 but not  extinguished4 ,yet we  
read in ,livy1 that it was the opinion  
of the  heralds' college1 that after the
 expiration of a truce war ought  to be 
declared4 ,but the ancient ,romans only 
meant to shew by those  superfluous     
precautions1 how much they loved peace1 
and upon what just  grounds they were   
dragged into war4    ,,iv4 ,the time1   
generally assigned for the continuance  
of a truce1 is  either some             

uninterrupted period1 of a ,,hundred    
,,days1 for instance1 or  a space       
limited by some artificial boundary of  
time1 as the ,calends of  ,march4 ,in   
the former case1 the calculation is to  
be made according to  the natural motion
 of time3 whereas all civil computations
 depend upon  the laws and customs of   
each country4 ,in the other case it is  
generally  made a matter of doubt1      
whether in naming any particular day1   
month or  year1 for the expiration of a 
truce1 that particular day1 month1 or   
year1 are comprehended in the term of   
the truce1 or excluded from it4    ,in  
natural things there are two kinds of   
boundaries1 one of which forms  an      
inseparable part of the things          
themselves1 as the skin does of the     
body1 and the other only adjoins them1  
as a river adjoins the land1  which it  
bounds or washes4 ,in either of these   
ways voluntary boundaries  may be       
appointed4 ,but it seems more natural   
for a boundary to be  taken as a part of

 the thing itself4 ,aristotle defines   
the extremity  of anything to be its    
boundary3 a meaning to which general    
custom  conforms3--thus if any one has  
said that a thing is to be done before  
the day of his death1 the day on which  
he actually dies is to be taken  into   
the account as forming part of the term4
 ,spurinna had apprised  ,caesar of his 
danger1 which could not extend beyond   
the ,ides of ,march4  ,being accosted1  
respecting the matter1 on the very day1 
he said1 the  ,ides of ,march are come1 
but not passed4 ,such an interpretation 
is the  more proper where the           
prolongation of time is of a favourable 
nature1  as it is in truces1 which are  
calculated to suspend the effusion of   
human blood4    ,the day1 ,,from which  
any measure of time is said to begin1   
cannot be  taken into the account2      
because the word1 ,,from1 used on that  
occasion1  implies separation and not   
conjunction4    ,v4 ,it is to be        
observed that truces1 and engagements of

 that kind  immediately bind the        
contracting parties themselves from the 
very  moment they are concluded4 ,but   
the subjects on either side are only    
bound from the time that those          
engagements have received the form  of a
 law1 for which public notice and the   
regular promulgation are  necessary4    
,upon this being done they immediately  
derive their authority  to bind the     
subjects4 ,but if notice thereof has    
only been given in one  place1 the      
observance of them cannot be enforced   
through the whole  dominions of the     
respective sovereigns at one moment1 but
 sufficient  time must be allowed for   
the due promulgation of them to be made 
in  every part4 ,therefore if in the    
meantime the subjects on either side    
have committed an infraction of the     
truce1 they shall be exempt from        
punishment1 but the contracting parties 
themselves shall be obliged to  repair  
the damages4    ,,vi4 ,the very         
definition of a truce implies what      

actions are lawful1 and  what are       
unlawful during the continuance of it4  
,all acts of hostility  are unlawful    
either against the persons or goods of  
an enemy4 ,for every  act of violence   
during a truce is contrary to the law of
 nations4  ,even things belonging to an 
enemy1 which by any accident have fallen
  into our hands1 although they had been
 ours before1 must be restored4         
,because they had become theirs by that 
external right according to  which such 
things are adjudged4 ,and this is what  
,paulus the lawyer  says1 that during   
the time of a truce the law of          
postliminium cannot  exist1 because to  
constitute the law of postliminium there
 must be the  previous right of making  
captures in war1 which ceases upon the  
making  of a truce4    ,either party may
 go to or return from1 any particular   
place1 but  without any warlike         
apparatus or force1 that may prove a    
means of  annoyance1 or be attended with
 any danger4 ,this is observed by       

,servius  on that passage of ,virgil1   
where the poet says1 the ,latins mingled
  with their foes with impunity1 where  
he relates also that upon a  truce being
 made between ,porsenna and the ,romans 
during a siege1 when  the games of the  
circus were celebrating1 the generals of
 the enemy  entered the city1 contented 
in the lists1 and were many of them     
crowned  as conquerors4    ,,vii4 ,to   
withdraw farther into the country with  
an army1 which we find  from ,livy that 
,philip did1 is no way contrary to the  
intention and  principles of a truce3   
neither is it any breach of it to repair
 the  walls of a place1 or to raise new 
forces1 unless it has been prohibited   
by special agreement4    ,,viii4 ,to    
corrupt an enemy's garrisons1 in order  
to seize upon the  places which he      
holds1 is undoubtedly a breach of the   
spirit and letter  of any truce4 ,for no
 such advantage can justly be gained but
 by the  laws of war4 ,the same rule is 
to be laid down respecting the revolt   

of subjects to an enemy4 ,in the fourth 
book of ,thucydides1 ,brasidas  received
 the city of ,menda1 that revolted from 
the ,athenians to the  ,lacedaemonians  
during a truce1 and excused his conduct 
upon the plea of  the ,athenians having 
done the same4    ,either of the        
belligerent powers may take possession  
of places that  have been deserted3 if  
they have been ,,really deserted by the 
former  owner with the intention never  
to occupy them again1 but not merely    
because they have been left unguarded1  
either ,,before1 or ,,after1 the  making
 of a truce4 ,for the former owner's    
right of dominion therein  still        
remaining renders another's possession  
of them unjust4 ,which is a  complete   
refutation of the cavil of ,belisarius  
against the ,goths1 who  seized upon    
some places during a truce1 under       
pretext of their being  left without    
garrisons4    ,,ix4 ,it is made a       
subject of inquiry1 whether any one     
being prevented by  an unforeseen       

accident from making his retreat1 and   
being taken within  the enemy's         
territories1 at the expiration of a     
truce1 has a right to  return4          
,considering the external law of nations
 he is undoubtedly upon  the same       
footing as one1 who1 having gone into a 
foreign country must1  upon the sudden  
breaking out of war1 be detained there  
as an enemy  till the return of peace4  
,nor is there any thing contrary to     
strict  justice in this2 as the goods   
and persons of enemies are bound for the
  debt of the state1 and may be seized  
for payment4 ,nor has such a one  more  
reason to complain than innumerable     
other innocent persons1 on  whose heads 
the calamities of war have fallen4 ,nor 
is there occasion  to refer to the case1
 which ,cicero has alleged1 in his      
second book ,,on  ,,invention1 of a ship
 of war driven by the violence of the   
wind into a  port1 where by law it was  
liable to confiscation4 ,for in the     
former  case the unforeseen accident    

must do away all idea of punishment1    
and in the latter1 the right of         
confiscation must be suspended for a    
time4 ,yet there can be no doubt but    
there is more of generosity and         
kindness in releasing such a person than
 in insisting upon the right of         
detaining him4    ,x4 ,the express      
nature of a convention renders some     
things unlawful  during a truce1 as for 
instance1 if it is granted only in order
 to  bury the dead1 neither party will  
have a right to depart from those       
conditions4 ,thus if a siege is         
suspended by a truce1 and nothing more  
than such a suspension is thereby       
granted2 the besieged cannot lawfully   
avail himself of it1 to convey fresh    
supplies of troops and stores into  the 
place4 ,for such conventions ought not  
to prove beneficial to one  party1 to   
the prejudice of the other1 who grants  
them4 ,sometimes it is  stipulated that 
no one shall be allowed to pass to and  
fro4 ,sometimes  the prohibition extends

 to persons and not to goods4 ,in which 
case1  if any one1 in protecting his    
goods1 hurts an enemy1 the act will not 
constitute a breach of the truce4 ,for  
as it is lawful that either party       
should defend his property1 an          
accidental circumstance cannot be deemed
  an infringement of that personal      
security1 which was the principal       
object provided for by the truce4       
,,xi4 ,if the faith of a truce is broken
 by one of the parties1 the  other who  
is thereby injured1 will undoubtedly    
have a right to renew  hostilities      
without any formal declaration4 ,for    
every article in a  treaty contains an  
implied condition of mutual observance4 
,indeed we  may find in history         
instances of those1 who have adhered to 
a truce  till its expiration1           
notwithstanding a breach on the other   
side4 ,but on  the other hand there are 
numerous instances of hostilities       
commenced  against those1 who have      
broken their conventions3 a variation1  

which  proves that it is at the option  
of the injured party to use or not to   
use his right of renewing war upon the  
breach of a truce4    ,,xii4 ,it is     
evident that1 if the stipulated penalty 
is demanded of the  aggressor1 and paid 
by him1 the other party can no longer   
maintain his  right of renewing the war4
 ,for the payment of the penalty        
restores  every thing to its original   
footing4 ,and on the other hand1 a      
renewal  of hostilities implies an      
intention of the injured party to       
abandon the  penalty1 since he has had  
his option4    ,,xiii4 ,a truce is not  
broken by the acts of individuals1      
unless they  are sanctioned by the      
authority of the sovereign1 which is    
generally  supposed to be given1 where  
the delinquents are neither punished nor
  delivered up1 nor restitution is made 
of goods taken away4    ,,xiv4 ,the     
rights belonging to a safe-conduct are a
 privilege distinct  from the nature of 
a truce1 and our interpretation of them 

must be  guided by the rules laid down  
respecting privileges4    ,such a       
privilege1 to be perfect1 must be       
neither injurious to a third  person1   
nor prejudicial to the giver4 ,therefore
 in explaining the  terms1 in which it  
is couched1 a greater latitude of       
interpretation  may be allowed1         
especially where the party suing for it 
receives no  benefit1 but rather confers
 one1 and still more so where the       
advantage1  accruing to the individual  
from thence1 redounds also to the public
  benefit of the state4    ,therefore   
the literal interpretation1 which the   
words may bear1 ought  to be rejected1  
unless otherwise some absurdity would   
follow1 or there  is every reason to    
suppose that such a literal             
interpretation is most  conformable to  
the will and intention of the parties   
concerned4 ,in the  same manner1 on the 
other hand1 a greater latitude of       
interpretation  may be allowed1 in order
 to avoid the same apprehended          

absurdity1 or  to comply more fully with
 the most urgent and forcible           
conjectures  respecting the will of the 
contracting parties4    ,,xv4 ,hence we 
may infer that a safe-conduct1 granted  
to ,,soldiers1  includes not only those 
of an ,,intermediate ,,rank1 but the    
,,highest  ,,commanders4 ,for that is a 
signification strictly and properly     
authorised by the words themselves1     
although they ,,may be taken in a  more 
,,limited meaning4 ,so the term         
clergymen includes those of episcopal   
as well as those of inferior rank1 and  
by those serving on board a  fleet1 we  
mean not only sailors1 but all persons  
found there1 who have  taken the        
military oath4    ,,xvi4 ,where a free  
passage is granted1 liberty to return is
 evidently  implied1 not from the       
literal force of the expressions        
themselves1 but  to avoid the absurdity 
which would follow the grant of a       
privilege1  that could never be made use
 of4 ,and by the liberty of coming and  

going is meant a safe passage till the  
person arrives in a place of  perfect   
security4 ,from hence the good faith of 
,alexander was impeached1  who ordered  
those to be murdered on the way1 whom he
 had allowed to  depart4    ,any one may
 be allowed to go away without being    
allowed to return4  ,but no power can   
properly refuse admitting any one1 to   
whom he has  granted leave to come1 and 
on the other hand1 his admission implies
  such a leave to have been given4      
,,going ,,away and ,,returning are      
indeed  very different1 nor can any     
construction of language give them the  
same  meaning4 ,if there be any mistake1
 although it may confer no right1 it    
exempts the party from all              
penalties4--,a person permitted to come 
shall  only come ,,once1 but not a      
,,second ,,time1 unless the additional  
mention of  some time may supply room to
 think otherwise4    ,,xvii4 ,a son     
shares the fate of his father1 and a    
wife of her husband  no farther than as 

to the right of residing1 for men reside
 with their  families1 but in general   
undertake public missions without them4 
,yet one or two servants1 though not    
expressly named1 are generally          
understood to be included in a          
safe-conduct1 especially where it would 
be improper for the person to go without
 such attendants4 ,for every  necessary 
consequence is understood to go along   
with any privilege that  is given4      
,,xviii4 ,in the same manner no other   
effects are included in a  safe-conduct1
 but such as are usually taken on a     
journey4    ,,xix4 ,the name of         
attendants1 expressed in a safe-conduct1
 granted to  any one1 will not allow him
 to extend the protection of it to men  
of atrocious and criminal characters1   
such as pirates1 robbers1 and           
deserters4 ,and the ,,country of the    
attendants being named shews that the   
protection cannot extend to those of    
another nation4    ,,xx4 ,the privileges
 of a safe-conduct do not1 in doubtful  

cases1 expire  upon the demise of the   
sovereign who granted it1 according to  
what was  said in a former part of this 
treatise on the nature of favours       
granted  by kings and sovereign princes4
    ,,xxi4 ,it has often been a disputed
 point1 what is meant by the  expression
 used in a safe-conduct1 that it shall  
continue during the  ,,pleasure ,,of    
,,the ,,grantor4 ,but there seems most  
reason and truth in the  opinion of     
those1 who maintain that the privilege  
shall continue1 till  the grantor make  
some new declaration of his will to the 
contrary4  ,because1 in doubtful cases1 
a favour is presumed to continue1 till  
the right1 which it conveys1 is         
accomplished4 ,but not so1 where all    
possibility of ,,will in the grantor has
 ceased1 which happens by his  death4   
,for upon the death of the person all   
presumption of his ,,will  continuing   
must cease3 as an accident vanishes when
 the substance is  destroyed4    ,,xxii4
 ,the privilege of a safe-conduct       

protects the person1 to whom it  is     
given1 even beyond the territories of   
the grantor3 because it is  given as a  
protection against the rights of war1   
which are not confined  to his          
territory4    ,,xxiii4 ,the redemption  
of prisoners is much favoured1          
particularly among  ,christian states1  
to whom the divine law peculiarly       
recommends it as a  kind of mercy4      
,lactantius calls the redemption of     
prisoners a great and  splendid office  
of justice4          ,,chapter ,,xxii4  
,,on ,,the ,,faith ,,on ,,those         
,,invested ,,with ,,subordinate ,,powers
 ,,in ,,war4      ,commanders--,extent  
of their engagements in binding the     
sovereign--,exceeding their             
commission--,the opposite party bound by
      such engagements--,power of       
commanders in war1 or of magistrates    
with respect to those under their       
authority--,generals cannot make        
peace1 but may conclude a truce--,extent
 of their authority in      granting    

protection to persons and               
property--,such engagements to be       
strictly interpreted--,interpretation of
 capitulations accepted by              
generals--,precautions necessary till   
the pleasure of the sovereign      be   
known--,promise to surrender a town4    
,i4 ,ulpian reckons the agreements1     
entered into between the generals of    
opposite armies during the course of a  
war1 among public conventions4  ,so that
 after explaining the nature of the     
faith pledged by sovereign  powers to   
each other1 it will be proper to make a 
short inquiry into  the nature of       
engagements made by subordinate         
authorities2 whether  those authorities 
bear a near approach to supreme power1  
as commanders  in chief1 or are removed 
to a greater distance from it4 ,caesar  
makes  the following distinction between
 them1 observing that the offices of    
commander and deputy are very different2
 the latter being obliged to  act       
according to prescribed rules1 and the  

former having unqualified  discretion in
 matters of the highest importance4     
,,ii4 ,the engagements of those invested
 with such subordinate powers are  to be
 considered in a double point of view1  
whether they are binding  upon the      
sovereign1 or only upon themselves4 ,the
 former of these  points has been       
already settled in a former part of this
 treatise1  where it was shewn that a   
person is bound by the measures of an   
agent1  whom he has appointed to act in 
his name1 whether his intentions have   
been expressly named1 or are only to be 
gathered from the nature  of the        
employment4 ,for whoever gives another a
 commission1 gives  him along with it   
every thing in his power that is        
necessary to the  execution of it4 ,so  
that there are two ways1 in which       
persons acting  with subordinate powers 
may bind their principals by their      
conduct1  and that is1 by doing what is 
probably thought to be contained in     
their commission1 or apart from that1 by

 acting according to special            
instructions1 generally known1 at least 
to those1 with whom they treat4         
,,iii4 ,there are other modes too1 in   
which a sovereign may be bound  by the  
previous act of his minister2 but not in
 such a manner as to  suppose the       
obligation owes its ,,existence to that 
action1 which only  gives occasion to   
its fulfilment4 ,and there are two ways1
 in which this  may happen1 either by   
the consent of the sovereign1 or by the 
very  nature of the thing itself4 ,his  
consent appears by his ratification of  
the act1 either expressed or implied1   
and that is1 where a sovereign  has     
known and suffered a thing to be done1  
which can be accounted for  upon no     
other motive but that of approval and   
consent4    ,the very nature and        
obligation of all contracts imply that  
one party  is not to gain advantage by  
the loss of another4 ,or if advantage   
is expected from a contract1 the        
contract must be fulfilled or the       

advantage abandoned4 ,and in this sense1
 and no other1 the proverbial           
expression1 that whatever is beneficial 
is valid1 is to be understood4    ,on   
the other hand a charge of injustice may
 fairly be brought against  those1 who  
condemn an engagement1 yet retain the   
advantages1 which they  could not have  
had without it4    ,,iv4 ,it is         
necessary to repeat an observation made 
before1 that a  sovereign1 who has given
 a commission to another1 is bound by   
the  conduct of that person1 even though
 he may have acted contrary to his      
secret instructions1 provided he has not
 gone beyond the limits of his          
ostensible1 and public commission4      
,this was a principle of equity1 which  
the ,roman ,praetor observed in  actions
 brought against employers for the      
conduct of their agents  or factors4 ,an
 employer could not be made answerable  
for any act or  measure of his factor1  
but such as was immediately connected   
with the  business1 in which he employed

 him4 ,nor could ,,he be considered as  
an  appointed agent1 with ,,whom the    
public were apprised1 by due notice1 to 
make no contract--,if such notice was   
given1 without having come to the       
knowledge of the contracting parties1   
the employer was bound by the  conduct  
of the agent4 ,if any one chuses to make
 a contract on certain  conditions1 or  
through the intervention of a third     
person1 it is right  and necessary for  
that person to observe the particular   
conditions on  which he is employed4    
,from hence it follows that kings and   
nations are more or less bound  by the  
conventions of their commanders in      
proportion as their laws1  conditions1  
and customs1 are more or less known4 ,if
 the meaning of  their intentions is not
 evident1 conjecture may supply the     
place of  evidence1 as it is natural to 
suppose that any one employed would be  
invested with full powers sufficient to 
execute his commission4    ,a person    
acting in a subordinate capacity1 if he 

has exceeded the  powers of his         
commission will be bound to make        
reparation1 if he cannot  fulfil his    
engagement1 unless he is prevented from 
doing so by some  well known law4       
,but if he has been guilty of treachery 
also1 in pretending to greater  powers  
than he really possessed1 he will be    
bound to repair the injury1  which he   
has ,,wilfully done1 and to suffer      
punishment corresponding  with his      
offence4 ,for the first of these        
offences1 his property is  answerable1  
and on failure of that1 his personal    
liberty3 and in  the latter case1 his   
person or property1 or both must be     
answerable  according to the magnitude  
of the crime4    ,v4 ,as a sovereign or 
his minister is always bound by every   
contract1 it  is certain the other party
 will also be bound by the engagement3  
nor  can it be deemed imperfect4 ,for in
 this respect there is a comparative    
equality between sovereign and          
subordinate powers4    ,,vi4 ,it is     

necessary to consider too what are the  
powers of subordinate  authorities over 
those beneath them4 ,nor is there any   
doubt that a  general may bind the army1
 and a magistrate1 the inhabitants of a 
place  by those actions1 which are      
usually done by commanders1 or          
magistrates1  otherwise their consent   
would be necessary4    ,on the other    
hand1 in engagements purely beneficial1 
the advantage  shall be on the side of  
the inferior3 for that is a condition   
comprehended in the very nature of      
power4--,where there is any  burdensome 
condition annexed it shall not extend   
beyond the usual  limits in which       
authority is exercised2 or if it does1  
it shall be at  the option of the       
inferior to accept or refuse that       
condition4    ,,vii4 ,as to the causes  
and consequences of a war1 it is not    
within the  province of a general to    
decide them4 ,for concluding and        
conducting  a war are very different    
things1 and rest upon distinct kinds of 

authority4    ,,viii4 and ,,ix4 ,as to  
granting truces1 it is a power which    
belongs not  only to commanders in      
chief1 but also to inferior commanders4 
,and they  may grant them for           
themselves1 and the forces immediately  
under their  command1 to places which   
they are besieging or blockading3 but   
they do  not thereby bind other parts of
 the army4 ,generals have no right to   
cede nations1 dominions1 or any kind of 
conquests made in war4 ,they  may       
relinquish any thing of which a complete
 conquest has not been  made3 for towns 
frequently surrender on condition of the
 inhabitants  being spared1 and allowed 
to retain their liberty and property3   
cases1  in which there is no time for   
consulting the will and pleasure of the 
sovereign4 ,in the same manner1 and upon
 the same principle this right  is      
allowed to subordinate commanders1 if it
 falls within the nature of  their      
commission4    ,x4 ,as commanders1 in   
all such engagements1 are acting in the 

name of  others1 their resolutions must 
not be interpreted so strictly as to    
bind their sovereigns to greater        
obligations than they intended to       
incur1 nor at the same time to prove    
prejudicial to the commanders           
themselves for having done their duty4  
,,xi4 ,an absolute surrender implies    
that the party so capitulating  submits 
to the pleasure and discretion of the   
conqueror4    ,,xii4 ,in ancient        
conventions a precaution was usually    
added1 that they  would be ratified1 if 
approved of by the ,roman people4 ,so   
that if  no ratification ensued1 the    
general was bound no further than to be 
answerable for any advantage that might 
have accrued to himself4    ,,xiii4     
,commanders having promised to surrender
 a town1 may dismiss the  garrison4     
,,chapter ,,xxiv4#ha    ,,on ,,tacit    
,,faith4      ,tacit faith--,example of 
in desiring to be taken under the       
protection      of a king or            
nation--,implied in the demand or grant 

of a      conference--,allowable for the
 party seeking it to promote his own    
interest thereby provided he uses no    
treachery--,meaning of mute      signs  
allowed by custom4      ,i4 ,both       
public1 private1 and mixed1 conventions 
admit of tacit consent1  which is       
allowed by custom4 ,for in whatever     
manner consent is indicated  and        
accepted it has the power of conveying a
 right4 ,and1 as it has  been frequently
 observed in the course of this         
treatise1 there are  other signs of     
consent besides words and letters3 some 
of them indeed  naturally rising out of 
the action itself4    ,,ii4 ,an example 
of such tacit agreement may be found in 
the case of  a person coming from an    
enemy1 or foreign country1 and          
surrendering  himself to the good faith 
of another king or people4 ,for such a  
one  tacitly binds himself to do nothing
 injurious or treacherous to that       
state1 where he seeks protection1 a     
point which is beyond all doubt4        

,,iii4 ,in the same manner1 a person who
 grants or requests a conference1  gives
 a tacit promise1 that he will do       
nothing prejudicial to the  parties1 who
 attend it4 ,livy pronounces an injury  
done to an enemy1  under the pretext of 
holding a conference1 a violation of the
 law of  nations4    ,,iv4 ,but such a  
tacit promise1 to take no advantage of a
 parley or  conference1 is not to be    
carried farther than what has been said4
  ,provided all injury and injustice are
 avoided1 it is reckoned a lawful       
stratagem1 for any one to avail himself 
of a parley in order to draw  off the   
enemy's attention from his military     
projects1 and to promote  his own4 ,the 
device1 by which ,asdrubal extricated   
his army from the  ,ausetanian forests1 
was of this kind1 and by the same means 
,scipio  ,africanus1 the elder1 gained a
 perfect knowledge of ,syphax's camp4   
,both these circumstances are related by
 ,livy4    ,v4 ,there are certain mute  
signs1 deriving all their force and     

meaning  from custom2 such as the       
fillets1 and branches of olive formerly 
used3  among the ,macedonians pikes     
erected1 and among the ,romans shields  
placed upon the head1 were signs of a   
suppliant surrender obliging the  party 
to lay down his arms4 ,in the present   
day a white flag is a sign  of suing for
 a parley4 ,therefore all these methods 
have the force of  express declarations4
          ,,chapter ,,xxv4              
,,conclusion4      ,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   
work4      ,i4 ,here seems to be the    
proper place to bring this work to a    
conclusion1 without in the least        
presuming that every thing has been     
said1 which might be said on the        
subject3 but sufficient has been        

produced to lay a foundation1 on which  
another1 if he pleases1 may  raise a    
more noble and extensive edifice1 an    
addition and improvement  that will     
provoke no jealousy1 but rather be      
entitled to thanks4    ,before entirely 
dismissing the subject1 it may be       
necessary to observe1  that1 as in      
laying down the true motives and causes1
 that alone will  justify war1 every    
possible precaution at the same time was
 taken  to state the reasons for which  
it should be avoided2 so now a few      
admonitions will not be deemed          
superfluous1 in order to point out  the 
means of preserving good faith in war1  
and maintaining peace1  after war is    
brought to a termination1 and among     
other reasons for  preserving good faith
 the desire of keeping alive the hope of
 peace1  even in the midst of war1 is   
not the least important4 ,for good      
faith1  in the language of ,cicero1 is  
not only the principal hold by which    
all governments are bound together1 but 

is the key-stone by which the  larger   
society of nations is united4 ,destroy  
this1 says ,aristotle1 and  you destroy 
the intercourse of mankind4    ,in every
 other branch of justice there is       
something of obscurity1 but  the bond of
 faith is clear in itself1 and is used  
indeed to do away  the obscurity of all 
transactions4 ,the observance of this is
 a matter  of conscience with all lawful
 kings and sovereign princes1 and is the
  basis of that reputation by which the 
honour and dignity of their  crowns are 
maintained with foreign nations4        
,,ii4 ,in the very heat of war the      
greatest security and expectation of    
divine support must be in the unabated  
desire1 and invariable prospect  of     
peace1 as the only end for which        
hostilities can be lawfully begun4  ,so 
that in the prosecution of war we must  
never carry the rage of it so  far1 as  
to unlearn the nature and dispositions  
of men4    ,,iii4 ,these and these alone
 would be sufficient motives for the    

termination of war1 and the cultivation 
of peace4 ,but apart from all           
considerations of humanity1 the         
,,interests of mankind would inevitably 
lead us to the same point4 ,in the first
 place it is dangerous to  prolong a    
contest with a more powerful enemy4 ,in 
such a case some  sacrifices should be  
made for the sake of peace1 as in a     
storm goods  are sometimes thrown       
overboard to prevent a greater calamity1
 and to  save the vessel and the crew4  
,,iv4 ,even for the stronger party1 when
 flushed with victory1 peace is  a safer
 expedient1 than the most extensive     
successes4 ,for there is  the boldness  
of despair to be apprehended from a     
vanquished enemy1  dangerous as the bite
 of a ferocious animal in the pangs of  
death4    ,v4 ,if indeed both parties   
are upon an equal footing1 it is the    
opinion  of ,caesar1 that it is the most
 favourable moment for making peace1    
when  each party has confidence in      
itself4    ,,vi4 ,on whatever terms     

peace is made1 it must be absolutely    
kept4 ,from  the sacredness of the faith
 pledged in the engagement1 and every   
thing must be cautiously avoided1 not   
only savouring of treachery1  but that  
may tend to awaken and inflame          
animosity4 ,for what ,cicero  has said  
of private friendships may with equal   
propriety be applied  to public         
engagements of this kind1 which are all 
to be religiously  and faithfully       
observed1 especially where war and      
enmity have ended in  peace and         
reconciliation4    ,,vii4 ,and may ,god1
 to whom alone it belongs to dispose the
 affections  and desires of sovereign   
princes and kings1 inscribe these       
principles  upon their hearts and minds1
 that they may always remember that the 
noblest office1 in which man can be     
engaged1 is the government of men1  who 
are the principal objects of the divine 
care4          ,,index        ,abandoned
 property1 title to1 #ajg1 #aaa4        
,acceptance3 ,necessity of1 in promise  

to convey a right1 #aci4                
,acceptilation1 #aaa4      ,accessories 
to crimes1 #aig1 #beg4                  
,accomplices1 punishment of1 #bef4      
,acquisitions3 ,of property in war1 #ccd
 et seq41 #cdf4      ,of dominion1 #cgi4
      ,actions at law3 ,stipulations as 
to1 in treaties1 #cij4      ,admiralty1 
#adf4      ,affirmations1 #afd1 #afe4   
,agency1 #cci1 #dab4      ,agents3 ,acts
 of1 binding on principal1 #ach1 #aci1  
#dab4      ,agreements3 ,special and    
exclusive1 #aja4      ,between citizens 
of different countries1 #acf4           
,alexandrinus1 ,clemens1 #eb4           
,alienation3 ,of things by right of war1
 #cec1 #chi4      ,of public dominion1  
#chf4      ,alliances3 ,between states1 
partnerships1 #adf4      ,unequal1 #aeh1
 #agj4      ,allies3 ,aid to1 #agc4     
,word construed1 #ahc4      ,causes     
justifying participation of1 in war1    
#bhe1 #bhg4      ,rewards to1 #cda4     
,ambassadors3 ,promises of1 binding1    
#aci4      ,ratification of treaties    

made by1 #afg4      ,inviolability of1  
#bjb1 #bjd4      ,must be duly          
accredited1 #bjb4      ,sovereign states
 may send1 #bjc4      ,refusal to       
receive1 #bjd4      ,exemptions1 #bje1  
#bji1 #baj1 #baa1 #cac4      ,punishment
 of1 for crimes1 #bjh4      ,passage    
through foreign states1 #bji4           
,suite and personal effects of1 #baa4   
,house of1 as asylum1 #baa4      ,debts 
contracted by1 #bab4      ,ambrose1 #ed4
      ,andronicus1 #bd4      ,antoninus1
 ,marcus1 #ff4      ,antoninus1 ,pius1  
#aab4      ,aptitude1 #ai4              
,arbiter1 office of1 #cih4              
,arbitration1 #hd1 #bgf1 #cig4          
,arcifinium1 #ajf4      ,aristotle1 #ai1
 #bj1 #bb1 #bd1 #fa1 #fb1 #fd1 #gf1     
#aah1 #abj1 #aij1 #bah1 #bea1           
#bfh4      ,asylum1 right of1 #bfj4     
,augustine1 #eh1 #gd4      ,aurelius1   
,marcus1 #eb1 #fh4        ,barbeyrac1   
#agc1 #cib4      ,blackstone's          
,commentaries1 #bi1 #fa1 #hf1 #ajj1     
#acf1 #aed1 #aee1 #aef1 #agg1           

#ahb--notes4      ,bodies politic1      
privileges of1 #bfb4      ,boundary1    
rivers as1 #ajg4      ,breach of peace1 
#cie4      ,burial1 right of1 #bac et   
seq4      ,burke1 ,edmund1 #bhb note4   
,caduceum1 use of1 #cbj4      ,caesar1  
,julius1 #ei4      ,captures in war1    
#ccd1 #cfi4      ,title to1 #cce1 #ccf1 
#cch4      ,things immovable1 #cci4     
,things movable1 #cdj4      ,restoration
 of1 #cib4      ,cargo1 in enemy's      
ships1 title to1 #ccg4      ,cassius1   
#fj1 #gd4      ,cato1 #ei1 #gg4         
,causes of war1 justifiable1 #he4       
,chirographarii1 #agc4      ,chrysostom1
 ,dio1 #be4      ,cicero1 #ah1 #bc1 #bd1
 #ca1 #cd1 #ce1 #fj1 #fh1 #gh1 #hf1 #hi1
 #ib1 #acg1 #aia1 #bjh1        #bad1    
#bae1 #bfh1 #bhc1 #cag1 #cgi4           
,civil law3 ,relation of1 to law of     
nature1 #ia4      ,and interpretation of
 treaties1 #aid4      ,prizes taken from
 ,pirates1 #ceg4      ,right of         
postliminium under1 #ceg4               
,clarigation1 #cai4      ,commerce1     

treaties of1 #afi1 #agj4                
,commissions3 ,special1 of ambassador1  
#afg4      ,variations from1 #ahh4      
,common right to actions1 #ii4          
,common right to things1 #ii4           
,community of goods1 #hf4      ,of      
lands1 #hh4      ,compensation1 defined1
 #chb4      ,compromise3 ,as method of  
settling national disputes1 #bgf4       
,conditional surrender1 #djj4           
,conference3 ,to settle disputes of     
nations1 #bgf4      ,conqueror1 rights  
of1 #cii4      ,conquest1 rights        
resulting from1 #cdh1 #cii4             
,consent to conventions1 #dae4          
,consideration of contracts1 #acf1 #ach4
      ,constantine1 #ec1 #ed4           
,contracts3 ,expressed and implied1     
#ajj1 #ade4      ,between citizens of   
different countries1 #acf4              
,consideration for1 #acf1 #acg4      ,of
 agents1 #acg4      ,exchange1 #ade1    
#adf4      ,revocation of1 #ade4        
,of sale1 #adf1 #aea4      ,mixed1 #adg4
      ,equality in1 #adh4      ,letting 

and hiring1 #aec4      ,fraudulent1     
#aii4      ,of sovereigns1 #chg1 #dac4  
,contributions levied for future        
security1 #cgc4      ,conventions3      
,public and private1 #aff4      ,public1
 division of1 #afg4      ,requiring     
ratification1 #afg1 #agd1 #dab1 #dad4   
,power to make1 in monarchies1 #afh4    
,resting in law of nature1 #afh4        
,of commerce and amity1 #afi4      ,of  
peace1 #agj4      ,obligations of       
negotiator1 #agd4      ,truces1 #djc4   
,made by subordinates1 #daa4      ,tacit
 consent to1 #dae4      ,corporeal      
rights1 #he4      ,countries1 names of1 
#cib4      ,creditors1 personal1 #agc4  
,crimes3 ,principals and accessories1   
#aig1 #aih1 #beg4      ,and             
misdemeanors1 #bda4        ,damages1    
#aif1 #aig1 #aii1 #bjj1 #chh4           
,debts1 individual1 effect of war upon1 
#cia4      ,deception1 innocent1 #cjb4  
,declaration of war1 #cah1 #cba4        
,after truce1 not necessary1 #djd4      
,defense3 ,a justifiable cause of war1  

#ge4      ,right of1 #cie4      ,demand 
of restitution1 #cai4      ,demosthenes1
 #gd1 #ha1 #agj1 #bdj1 #caj4            
,deserters3 ,not entitled to right of   
postliminium1 #cee1 #cij4               
,dictator1 sovereign power of1 #gb4     
,dionysius1 #fa1 #gd1 #ih1 #afc4        
,disputes of nations1 methods of        
settlement1 #bgf4      ,divided and     
assigned land1 #ajf4      ,dominion1    
acquisition of1 #cgb4      ,duration of 
truces1 #djd4      ,duties3 ,right to   
impose1 on goods in transit1 #ig4       
,duty of citizen to prevent war1 #bhf4  
,eliminium1 #cea4      ,enemies3        
,furnishing aid to1 #bic-cba4           
,public1 #cad4      ,killing of1 #cbe1  
#cbg1 #cei4      ,foreign residents may 
become1 #cbg4      ,property of1 right  
to destroy1 #ccb1 #cfe1 #cff4           
,forbearance toward1 #cgc4      ,good   
faith between1 #cgi4      ,engagements1 
#afg4      ,of sovereigns or states1    
#chg4      ,epictetus1 #bb4             
,equity3 ,a species of justice1 #aij4   

,in interpreting treaties1 #aia4        
,in matters of arbitration1 #cih4       
,euripides1 #bb1 #gh4      ,exchange1   
contracts of1 #ade4      ,extradition1  
#beh1 #bei4        ,factors3 ,acts of1  
bind merchants1 when1 #aci1 #dab4       
,faculty1 definition of1 #ai4           
,falsehood1 discussed1 #bii et seq4     
,fecial law of ,rome1 #cai4             
,federal ,union1 #fb1 #aba4      ,ferae 
naturae1 #hf4      ,rights of sovereign 
as to1 #ia4      ,fishing1 a common     
right1 #aja4      ,florentinus1 #ai1    
#ce4      ,foreign residents1 rights of1
 #ih1 #cbg4      ,free passage through  
countries1 right of1 #ie1 #ig4          
,permission first asked1 #if4           
,funeral rites1 #bad4        ,galen1    
#cc1 #fb4      ,good faith1 foundation  
of all treaties1 #che1 #dag4      ,goods
 in enemy's ships1 title to1 #ccg4      
,government3 ,change of form of1 effect 
upon debts1 #aba4      ,effects on      
treaties1 #ahe4      ,mixed1 #cdi4      
,governments1 established for what1 #fh4

      ,gregory of ,tours1 #fi4          
,guaranty of performance by another1    
#adc4        ,heraclitus1 #bd4          
,hermogenianus1 #cf4      ,herodotus1   
#ff1 #fh4      ,hesiod1 #bc1 #bd1 #fh4  
,hiring1 #aec4      ,homicide1          
excusable1 #bi4      ,hostages3 ,right  
to kill1 #ccj1 #cfd4      ,appendages to
 treaties1 #djj4        ,immunity of    
,ambassadors1 #bjb4      ,incorporeal   
rights1 #he1 #cji1 #cdf4      ,of a     
state lost by conquest1 #cdi4           
,indemnity3 ,a justifiable cause for    
war1 #ge4      ,injunctions1 #agj4      
,injuries to property3 ,robbery1 #ha4   
,redress for1 #caa4      ,amounting to  
breach of peace1 #cig4      ,insurance1 
contract of1 #aef1 #aeg4      ,interest1
 lawfulness of1 #aed1 #aef4             
,interpretation3 ,of laws1 #acf4        
,of promises1 #acg4      ,of treaties1  
#agf et seq4      ,words1 taken in      
common acceptation1 #agg4      ,words of
 art1 #agg1 #aha4      ,obscure words1  
#agh4      ,probable consequences1 #agi4

      ,context1 #agi4      ,motive1     
#ahj4      ,allies1 construed1 #ahc4    
,absurd conditions1 #ahh4      ,and law 
of nations1 #aid4      ,of peace1 #chi1 
#cib1 #dja4      ,names of countries1   
#cib4        ,josephus1 #ce1 #ej4       
,justifiable causes of war1 #gc1 #ge1   
#he1 #bdg1 #bhe4      ,justinian1 #eh4  
,kings1 accountability of1 #fi4         
,not all made by the people1 #fg4       
,lactantius1 #bc1 #gd4      ,lakes1 when
 property1 #ij4      ,lands3 ,three-fold
 division of1 #ajf4      ,when          
considered as taken possession of1 in   
war1 #ccf1 #cci4      ,postliminium     
rights of1 #cee4      ,waste1 #ij1 #ia4 
,law3 ,basis of1 #acf4      ,fecial1 of 
,rome1 #cai4      ,lawful war1 #ah1 #ca1
 #bgh1 #cbd4      ,law of ,nations1 #bc4
      ,how proved1 #be1 #aja4           
,voluntary1 #aeh4      ,and             
interpretation of treaties1 #aid4       
,use of term1 #bif4      ,positive1     
#big4      ,right to destroy property of
 enemy under1 #ccb4      ,respecting    

captures in war1 #ccd1 #ccf1 #cch4      
,law of nature1 #bb1 #gi1      ,relation
 to civil law1 #ia4      ,civil customs 
not part of1 #bdh4      ,ignorance of1  
excusable1 #bdh4      ,as to things     
captured in war1 #ccd4      ,laws3      
,interpretation of1 #acf4      ,power to
 repeal1 #bch4      ,letters of marque  
and reprisal1 #bgh1 #caa4      ,letting 
and hiring1 #aec4      ,lie1 what is a1 
#bii4      ,livy1 #fd1 #gc1 #gh1 #aad1  
#afg1 #agj1 #bjf1 #cag1 #ccb4           
,losses of individuals in war1 #chh4    
,lot1 as method of settling national    
disputes1 #bgg4        ,marque and      
reprisal1 letters of1 #bgh1 #caa4       
,mediation1 #hd4      ,mediator1 office 
of1 #cih4      ,money1 variations in    
value1 #aec4      ,monopoly1 #aja1 #aeb4
      ,moral distinctions1 as to acts1  
#bgd et seq4      ,mosaic ,law1 #bf-bh4 
,not binding upon ,christians1 #bi4     
,mutius1 ,quintius1 #cf4                
,nations1 law of1 #bc4      ,voluntary1 
#aeh4      ,union of1 rights continue1  

#aba4      ,restoration of conquered1   
#ced1 #cee1 #cij4      ,natural ,right1 
#ba4      ,nature1 law of1 unalterable1 
#bb4      ,proof of existence of1 #bd4  
,naval associations3 ,apportionment of  
losses1 #aeh4      ,necessity1          
appropriation of property under1 #ib1   
#ic4      ,negotiation of treaties1 true
 basis for1 #che4      ,neutral soil3   
,right of belligerent to1 #ic4          
,captures on1 #cdd4      ,goods1 #ccg4  
,neutrals1 rights and duties1 #cgg4     
,oaths3 ,sanctity of1 #afj et seq4      
,meaning of1 #afa4      ,validity and   
form of1 #afb4      ,effect and         
substance of1 #afc1 #cha4               
,authority of sovereign over1 #afd4     
,obligations3 ,arising from property1   
#abc4      ,imperfect1 #acd4            
,resulting from injury1 #aie4           
,enforcing performance of1 #bhg4        
,promises1 #aca1 #ace4      ,occupancy1 
title by1 #ij4      ,occupatory lands1  
#ajf4      ,offenses against society1   
punishment of1 #beh4      ,origen1 #di4 

,ovid1 #cb4        ,pardons1 lawfulness 
of1 #bcf1 #bch4      ,parley1 sign of1  
#daf4      ,partnerships1 #adf4         
,trading--proportion of profits and     
losses1 #aeg4      ,paulus1 #ba4        
,peace3 ,the object of wars1 #cgi4      
,treaties of1 #che4      ,who may make1 
#chf4      ,interpretation of1 #chi4    
,breach of1 #cic4      ,preservation of1
 #dag4      ,penal statutes1            
construction of1 #aha4      ,penalties3 
,remitted1 #cia4      ,special1 #cif4   
,payment of1 effect on wars1 #djh4      
,performance of contract1 guaranty for1 
#adc4      ,piracy1 sovereign answerable
 for1 #bjj4      ,pirates1 treatment of1
 #chj4      ,plato1 #ge1 #ic1 #bbd1     
#bbf1 #bbi4      ,pledges3 ,appendages  
to treaties1 #djj4      ,redemption of1 
#dja4      ,pliny1 #cf1 #bed4           
,plutarch1 #bc1 #bd1 #ff1 #ic1 #bba1    
#bbf1 #bbg1 #bce4      ,polybius1 #bc1  
#gc1 #bjh4      ,pomponius1 #aei4       
,ponds1 when property1 #ij4             
,porphyry1 #bd4      ,possession3       

,uninterrupted1 transfers property1     
#aad4      ,of property1 at conclusion  
of war1 #cij4      ,right of1 #cii4     
,posthumous rights to property1 #aad4   
,postliminium3 ,definition of1 #afi1    
#cca4      ,right of1 #cad1 #ccf1 #cea1 
#ced1 #cij1 #dje4      ,horses1 mules1  
and ships under law of1 #ceb1 #dje4     
,deserters1 #cee1 #cij4      ,lands1    
#cee4      ,movable property1 #cef4     
,things useful in war1 #cef4            
,premium of insurance1 #aef4            
,prescription1 law of1 as applied to a  
sovereign1 #aae4      ,price1 governed  
by demand1 #aea4      ,prisoners3       
,surrender of1 #beh1 #bei4      ,killing
 of1 #cbh1 #cfc4      ,as slaves1 #cde4 
,ransom of1 #cdg1 #daj4      ,right of  
postliminium1 #ceb1 #cij4      ,rights  
of1 on release1 #cec4      ,right of    
making1 #ceg4      ,privateers1 #bjj4   
,private right1 #bj4      ,privileges of
 bodies politic1 #bfb4      ,prizes3 ,by
 right of war1 #ccg1 #cdc1 #cdf4        
,taken from pirates1 #ceg4              

,prohibitions in treaties1 #aic4        
,promises3 ,obligation of1 #aca1 #ace1  
#cgi1 #cha4      ,perfect1 #ace1 #aid4  
,interpretation of1 #acg4      ,obtained
 by fraud or fear1 #acg4                
,erroneous1 #acg1 #adb4      ,valid1    
#ach4      ,of ambassadors1 #aci4       
,revocation of1 #adj4      ,acceptance  
of1 #aci1 #ada1 #dae4      ,with        
conditions1 #adb4      ,property3 ,means
 of acquiring1 #ajc4      ,obligations  
arising from possession of1 #abc et seq4
      ,alienated by rights of war1 #cec1
 #chi4      ,restoration of1 taken in   
unjust war1 #cge4      ,possession of1  
for long time may not give right of1    
#aji1--;but          see #aad4          
,redress of injuries to1 #caa1 #cah4    
,of enemy1 right to destroy1 #ccb1 #cfe1
 #cff4      ,title to1 #cce1 #ij4       
,possession of1 after war1 #cij4        
,appropriation of1 on ground of         
necessity1 #ia1 #ib4      ,of subjects1 
liability of for debts of states1 #cjh1 
#cgj1 #chg4      ,title to1 as between  

enemies1 #cch4      ,use of1 #id4       
,acquisition of1 in war1 #cdj4          
,captured1 #cfi4      ,idea of how      
established1 #hi4      ,when right of1  
ceases to exist1 #aag4      ,movable and
 immovable1 #hh1 #cef4      ,things not 
reducible to1 #hi4      ,in lakes1      
ponds1 and rivers1 #ij4      ,abandoned1
 #ajg1 #aaa4      ,puffendorf1 #aic4    
,punishment3 ,a justifiable cause of    
war1 #ge4      ,defined1 #bba4      ,who
 may inflict1 #bbc1 #bbf1 #bbh4         
,object of1 #bbd1 #bbf1 #bbi1 #bcb1     
#bdj1 #bdg1 #cgj4      ,under the       
,gospel1 #bcj4      ,capital1 #bcc4     
,wicked acts not subject to1 #bce4      
,proportioned to offense1 #bdc et seq4  
,of offenses against ,god1 #bdi et seq4 
,communication of1 upon accomplices1    
#bef4      ,offenses affecting society1 
#beh4      ,of non-participants1 #bfb4  
,of surety1 #bfd4      ,of children for 
parents' sins1 #bff4      ,classes      
exempt from1 #cfb4      ,of hostages1   
#cfd4      ,right to claim property as1 

#cia4        ,quintilian1 #bd1 #hi4     
,ratification of treaties and           
conventions1 #afg1 #age1 #dad4          
,recovery of things alienated by rights 
of war1 #cec4      ,redemption of       
pledges1 #dja4      ,redress1 method of 
obtaining1 #caa1 #cah4      ,religion1  
based on four truths1 #bej4             
,remedial statutes1 construction of1    
#aha4      ,reprisal3 ,letters of       
,marque and1 #bgh4      ,a method of    
obtaining redress1 #caa1 #cab1 #cbg1    
#cgj4      ,residents1 foreign1 rights  
of1 #ig4      ,restoration3 ,of         
subjugated people1 #ced1 #cee4      ,of 
property1 #cge1 #cib4      ,right3 ,to  
movables by occupancy1 #ajd4      ,to   
impose duties on goods in transit1 #ig4 
,common-passage through countries1 #ie1 
#ig1 #ii4      ,of burial1 #bac4        
,violation of1 #cja4      ,of dominion1 
acquisition of1 #cgi4      ,of governors
 and governed1 #ai4      ,of prisoners1 
#cec4      ,definition and signification
 of1 #ah1 #ai1 #bj4      ,to actions1   

#ii4      ,private1 #bj4      ,superior1
 #bj4      ,of asylum1 #bfj4            
,voluntary1 #be4      ,of making war1   
#chf4      ,of possession1 #cii4        
,rights3 ,human and ,divine1 #be4       
,sources of1 #aie4      ,disputed1      
methods of settling1 #bgf4      ,of     
property1 #cjg4      ,of persons1 #ai1  
#cjg1 #cia4      ,resulting from        
conquest1 #cdh4      ,arising out of law
 of nations1 #bai4      ,real1 #ai4     
,of war1 #ah1 #ccb1 #ccf1 #cha4         
,corporeal and incorporeal1 #he1 #cji1  
#cdf4      ,of temporary residents1 #ih4
      ,of native1 #ib4      ,river3     
,effect of change in course of1 #ajf4   
,middle of boundary between territories1
 #ajg4      ,when property1 #ij1 #ajd4  
,robbery1 right to kill robber1 #ha4    
,romanus1 ,clemens1 #eb4        ,sacred 
things not exempt from destruction by   
enemy1 #ccb4      ,safe conduct1 a1     
#djh4      ,expiration of1 #dji4        
,sales and purchases3 ,right of         
restricting1 #ajj4      ,when contract  

complete1 #aea4      ,sallust1 #bjf4    
,salvian1 #ea4      ,sea3 ,open1 not    
property1 #ij4      ,portions of1 may   
become property1 #ajd4                  
,self-defense1 #gg4      ,seneca1 #ai1  
#bd1 #gd1 #ge1 #hj1 #ib1 #ajh1 #aah1    
#ace1 #aib4      ,services1 gratuitous1 
#add4      ,settlement of national      
disputes1 methods of1 #bgf4      ,ships4
 ,owners bound by acts of masters of1   
when1 #aci4      ,goods found in        
enemy's1 #ccg4      ,under law of       
postliminium1 #ceb4      ,silanian1     
,decree1 #ec4      ,slavery1 #cde4      
,slaves3 ,prisoners of war1 #cde4       
,right of postliminium1 #ceb4           
,smith1 ,adam1 #aja n4      ,soldiers1  
compensation to1 #cda1 #cdc4            
,sovereign power3 ,not in the people in 
every case1 #fc et seq41 #abj4          
,ceases1 when1 #aag4      ,to declare   
war1 #caf1 #chf4      ,sovereigns3      
,elective and hereditary1 #ga4          
,responsibility for piracy and robbery1 
#bjj4      ,for acts of subjects1 #beg4 

,bound by acts of commissioner1 #dab4   
,sovereignty3 ,its nature and where it  
resides1 #fj1 #fb1 #gj1 #ga1 #ajc4      
,not forfeitable by act of delinquency1 
#hj4      ,spies1 treatment of1 when    
captured1 #cca4      ,sponsio1 #afg4    
,state3 ,definition of1 #be4            
,sovereign1 #fb4      ,conquered1       
privileges allowed to1 #cgd4            
,division of1 into constituent parts1 by
 consent of war1 #aba4      ,states3    
,when immortal1 #aag4      ,may lose    
political existence by conquest1 #cdh1  
#cdi4      ,states ,general3 ,three     
divisions of1 #gj1 #ga4      ,power of1 
#ga4      ,of ,holland1 #ccg4           
,statutes3 ,penal construed strictly2   
remedial liberally1 #aha4      ,strabo1 
#fb1 #ih4      ,stratagem1 use of1 in   
war1 #bid et seq4      ,subjects3 ,of   
sovereign1 detention of1 #caa4          
,liability to attack1 in time of war1   
anywhere1 #cbg4      ,superior right1   
#bj4      ,supply of a thing affects its
 price1 #aea4      ,surety3 ,punishment 

of1 #bfd4      ,bound by consent1 #cjh4 
,surrender3 ,of a people1 in war1 #cij4 
,conditional1 #djj4      ,sylla1 ,lucius
 ,cornelius1 #eg4        ,tacitus1 #fd1 
#fh1 #hg1 #ajf1 #aaj1 #bac4      ,taxes 
on goods in transit1 #ig4               
,terminus1 rites of1 #cgc4              
,territory long possessed1 title to1    
#aaj4      ,tertullian1 #di1 #ea1 #eb4  
,thucydides1 #fj1 #agd4      ,time3 ,as 
an element of right of property1 #aji4  
,immemorial1 #aac4      ,transit1 goods 
in1 #ig4      ,treaties3 ,public and    
private1 #aff4      ,equal1 #agj4       
,unequal1 #aeh1 #agj1 #aga1 #ahd4       
,definition of1 #afg4      ,requiring   
ratification1 #afg4      ,power to make 
in monarchies1 #afh4      ,resting in   
law of nature1 #afh4      ,of commerce  
and amity1 #afi1 #agj1 #ahe4      ,of   
peace1 #agj1 #chf1 #chi1 #cia4          
,renewal of1 #agc4      ,effect of      
violation of1 #agd4      ,interpretation
 of1 #agf et seq4 7,see ,interpretation 
of ,treaties47      ,personal and real1 

#ahd4      ,where governments change    
form1 #ahd1 #ahe4      ,of peace1       
material part of1 #chf4                 
,stipulations as to actions at law1     
#cij4      ,hostages and pledges under1 
#djj4      ,truces3 ,definition1 #djc4  
,duration of1 #djd4      ,public notice 
of1 #dje4      ,breach of1 #djf1        
,granting of1 #dad        ,ulpian1 #ba1 
#cd1 #cf1 #abi1 #afb1 #aff1 #bfc1 #ccc4 
,unlawful acts1 #cje4      ,usucaption1 
law of1 as applied to sovereigns1 #aae4 
,usufruct1 #aee4      ,usufructuary     
property1 #hf4      ,usury1 #aee4       
,valentinian1 #fg4      ,value of a     
thing governed by what8 #aej4      ,of  
money1 #aec4      ,vasquez1 #hj1 #bci1  
#bhf1 #chh4      ,vattel1 #aja1 #aeh1   
#afg1 #afi1 #agg1 #bjc1 #big1 #chg1     
#chh--notes4        ,war3 ,definition   
of1 #ah1 #djc4      ,derivation of word1
 #ah4      ,division of1 public1        
private1 and mixed1 #ee4      ,all1 not 
repugnant to law of nature1 #cd1 #cf4   
,private1 #ee1 #ef1 #hc4                

,justifiable causes1 pretexts1 and      
beginning of1 #gc1 #ge1 #bdg1 #bhe4     
,defense1 indemnity and punishment1 #ge1
 #bde4      ,time of beginning1 #bhd4   
,object of1 #cgi4      ,effect upon     
debts1 #cia4      ,lawfulness of1 #ah1  
#ca1 #bgh1 #cbd4      ,under divine     
voluntary law1 #cf1 #dj4      ,aid to   
parties to1 #agc4      ,causes1         
justifying participation of allies1     
#bhe4      ,lawful means used in1 #bij1 
#cfc4      ,use of stratagem1 #bid4     
,suspicion of hostile intentions1 #hc4  
,injury to property1 #he4      ,demand  
of surrender of citizen1 #bhe4          
,precautions against1 #bhj et seq4      
,right of belligerents to neutral soil1 
#ic4      ,unjust1 causes of1 #bfg et   
seq4      ,avoidance of1 #bhj et seq41  
#dah4      ,declaration of1 #cah1 #cba1 
#djd1 and forms1 #cai4      ,right to   
make1 #chf4      ,losses of individuals 
by1 #chh4      ,public1 formal and      
informal1 declared by sovereign1 #eg1   
#caf1 #cag1          #chf4      ,right  

to avert1 and to punish wrongs1 #hc1    
#bjj1 #bdg1 #bhj4      ,wealth of       
,nations1 #aja n4      ,withernam1 #caa4
      ,wrongs3 ,division of1 private and
 public1 #fa4      ,sovereign power may 
avert and punish1 #hc4        ,xenophon1
 #cb1 #ic4          ,,footnotes3      #a
 ,the eighth ,section is omitted1 the   
greater part of it consisting  of verbal
 criticism upon ,aristotle's notions of 
geometrical and  arithmetical justice2 a
 discussion no way conducive to that    
clearness  and simplicity1 so necessary 
to every didactic                       
treatise4--,,translator4    #b ,the law1
 by its silence1 permits those acts1    
which it does not  prohibit4 ,thus many 
acts1 if they are not evil in           
themselves1 are no  offence1 till the   
law has made them such4 ,of this kind   
are many acts1  such as exporting gold1 
or importing certain articles of trade2 
doing  certain actions1 or following    
certain callings1 without the requisite 
qualifications1 which are made          

punishable offences by the              
,statute-,law4  ,those actions1 before  
the prohibition was enjoined by the law1
 came  under the class of what ,grotius 
calls permissions4    #c ,by moral      
necessity is meant nothing more than    
that the ,laws of  ,nature must always  
bind us4    #d ,to explain the meaning  
of ,grotius in this place1 recourse must
  be had to first principles4 ,thus the 
law of nature authorizing  self-defence 
in its fullest extent1 the laws of      
nations1 which  authorize war for the   
same purpose1 cannot be repugnant to it4
    #e ,the ,law of ,england on homicide
 excusable by self-defence1 will  throw 
light on the sentiments of ,grotius in  
this place4 ,the law  requires1 that the
 person who kills another in his own    
defence1 should  have retreated as far  
as he conveniently or safely can1 to    
avoid the  violence of the assault1     
before he turns upon his assailant2 and 
that1  not fictitiously1 or in order to 
watch his opportunity1 but from a  real 

tenderness of shedding his brother's    
blood4 ,and though it may be  cowardice1
 in time of war1 between two independent
 nations1 to flee  from our enemy2 yet  
between two fellow subjects the law     
countenances no  such point of honour2  
because the king and his courts are the 
vindices  injuriarum1 and will give to  
the party wronged all the satisfaction  
he  deserves4 ,and this is the doctrine 
of universal justice1 as well as of  the
 municipal law4--,blackstone's ,com4    
vol4 #d1 chap4 #ad4    #f ,the author   
here alludes to the defilement or       
uncleanness which  the ancients thought 
was contracted by touching a man1 who   
had killed  another1 even innocently and
 lawfully4--,barbeyrac4    #g ,the      
remainder of this section is omitted1   
,grotius himself stating  it to be only 
a repetition and enlargement of his     
arguments immediately  preceding it4    
7,translator47    #h ,grotius does not  
vouch for the truth of this assertion1  
but only  quotes the passage to shew    

there were ,,christians in the army of  
,marcus  ,aurelius4    #i ,by the       
,silanian decree of the ,senate1 it was 
ordered that if a  master happened to be
 murdered in his own house1 all the     
slaves under  the same roof should be   
put to death2 even though no proof      
appeared of  their being concerned in   
the murder4 ,we have an example of the  
case  in ,tacitus4 ,annal4 v4 xiv4 ch4  
xlii4 ,the ,emperor ,adrian softened the
  rigour of that decree1 by ordering    
that only they should be exposed to  the
 rack1 who were near enough to have     
heard some noise4 ,spartian1 ,life  of  
,adrian1 ch4 xviii4    #aj ,as ,grotius 
has so fully established his argument1  
it is  unnecessary to review his answer 
to further objections4--7,,translator47 
#aa ,as the topics of the third section 
have been so fully stated in  the second
 chapter1 that section has been omitted1
 and the translation  goes on from the  
second of the original to the fourth4   
7,translator47    #ab ,in case of       

rebellion1 the subjects taken in arms1  
have no right  to be treated as         
prisoners of war1 but are liable to     
punishment as  criminals4    #ac ,wrongs
 are divisible into two sorts or        
species1 ,,private ,,wrongs1  and       
,,public ,,wrongs4 ,the former are an   
infringement or privation of  the       
private or civil rights belonging to    
individuals1 considered as  individuals1
 and are therefore frequently termed    
civil injuries2  the latter are a breach
 and violation of public rights and     
duties  which affect the whole community
 considered as a community1  and are    
distinguished by the harsher appellation
 of crimes and  misdemeanors4--,blackst4
 ,com4 b4 iii4 c4 i4    #ad ,the        
translation proceeds from hence to the  
second book of the  original1 which     
seems to follow this part without any   
material break in  the chain of         
argument3 the intermediate sections     
relating to instances  in the ,roman    
,republic1 which do not directly apply  

to the practice of  modern              
governments4--,,translator4    #ae ,the 
tenth section is omitted in the         
translation2 as the subject of          
,christian forbearance of which it      
treats1 has already been discussed in   
the preceeding book4--,,translator4     
#af ,sections ,,xiii4 ,,xiv4 and ,,xv4  
of the original are omitted in the      
translation4--,,translator4    #ag      
,actus aliquos1 which literally         
signifies certain acts1 may be  rendered
 by the term incorporeal rights1 which  
imply the right of ways1  dignities1    
franchises1 and many other personal     
privileges arising out  of certain      
corporeal kinds of property4    #ah ,the
 words of ,judge ,blackstone will       
elucidate the meaning of  ,grotius in   
this place4 ,the learned ,commentator   
says1 ,there are some  few things1      
which1 notwithstanding the general      
introduction and  continuance of        
property1 must still unavoidably remain 
in common2 being  such wherein nothing  

but an usufructuary property is capable 
of being  had3 and therefore they still 
belong to the first occupant1 during the
  time he holds possession of them1 and 
no longer4 ,such 7among others7  are the
 elements of light1 air1 and water2     
which a man may occupy by  means of his 
windows1 his gardens1 his mills1 and    
other conveniences3  such also are the  
generality of those animals which are   
said to be  ferae naturae1 or of a wild 
and untameable disposition3 which any   
man  may seise upon and keep for his own
 use or pleasure4 ,all these things1  so
 long as they remain in possession1     
every man has a right to enjoy  without 
disturbance2 but if once they escape    
from his custody1 or he  voluntarily    
abandons the use of them1 they return to
 the common stock1  and any man else has
 a right to seise and enjoy them        
afterwards4    #ai ,the meaning of      
,grotius in this ,section will be more  
clearly  understood by a brief          
explanation of the nature of ,contracts4

 ,now  contracts are of two kinds1      
either express or implied4 ,express     
contracts are openly uttered and avowed 
at the time of making1 as to  deliver an
 ox1 or ten load of timber1 or to pay a 
stated price for  certain goods4        
,implied are such as reason and justice 
dictate1 and  which therefore the law   
presumes1 that every man undertakes to  
perform4  ,as1 if ,i employ a person to 
do any business for me1 or perform any  
work2 the law implies that ,i undertook1
 or contracted1 to pay him  as much as  
his labor deserves4 ,if ,i take up wares
 from a tradesman1  without any         
agreement of price1 the law concludes1  
that ,i contracted  to pay their real   
value4 ,and there is also one species of
 implied  contracts1 which runs through 
and is annexed to all other contracts1  
conditions1 and covenants1 viz4 that if 
,i fail in my part of the  agreement1 ,i
 shall pay the other party such damages 
as he has sustained  by such my neglect 
or refusal4 ,blackst4 ,com4 b4 ii4 c4   

#cj4 p4 #ddb4    #bj ,there are cases in
 which monopolies1 and the exclusive    
privileges  of trading companies are not
 only allowable but absolutely          
necessary4  ,for there are1 says        
,vattel1 commercial enterprizes that    
cannot be  carried on without an energy 
that requires considerable funds1 which 
surpass the ability of individuals4     
,there are others that would soon       
become ruinous1 were they not conducted 
with great prudence1 with one  regular  
spirit1 and according to well supported 
maxims and rules4 ,these  branches of   
trade cannot be indiscriminately carried
 on by individuals3  companies are      
therefore formed1 under the authority of
 the government2  and these companies   
cannot subsist without an exclusive     
privilege4  ,it is therefore            
advantageous to the nation to grant     
them3 hence have  arisen in different   
countries1 those powerful companies that
 carry on  commerce with the            
,east4--,law of ,nat4 b4 i4 c4 viii4    

sect4 #ig4 p4 #db4    #ba ,adam ,smith  
in his ,wealth of ,nations1 speaking of 
treaties of  commerce1 observes1 that   
when a nation binds itself by treaty1   
either  to permit the entry of certain  
goods from one foreign country which it 
prohibits from all others1 or to exempt 
the goods of one country from  duties to
 which it subjects those of all others1 
the country1 or at  least the merchants 
and manufacturers of the country1 whose 
commerce  is so favoured1 must          
necessarily derive great advantages from
 the  treaty4 ,those merchants and      
manufacturers enjoy a sort of monopoly  
in  the country1 which is so indulgent  
to them4 ,that country becomes a  market
 both more extensive and more           
advantageous for their goods3 more      
extensive1 because the goods of other   
nations being either excluded or        
subjected to heavier duties1 it takes   
off a great quantity of theirs3  more   
advantageous1 because the merchants of  
the favoured country1  enjoying a sort  

of monopoly there1 will often sell their
 goods for a  better price1 than if     
exposed to the free competition of all  
other  nations4--,vol4 #b4 b4 iv4 ch4   
vi4    #bb ,the translation proceeds    
from the fourth to the ninth ,chapter   
of the ,second book of the original4    
,the intermediate chapters1 being       
chiefly a repetition of the author's    
former arguments1 respecting the  rights
 of seas and rivers1 and other kinds of 
dominions2 and that  relating to the    
rights of persons1 being so fully       
treated in the first  volume of ,judge  
,blackstone's ,commentaries1 it seemed  
unnecessary to  give them in the present
 work4--,,translator4    #bc ,section   
,,vii of the original is omitted in the 
translation4--,,translator4    #bd ,the 
following extracts from ,blackstone's   
,com4 b4 ii4 ch4 xxx4  will elucidate   
the meaning of our author in this place4
 ,sale or  ,,exchange is a transmutation
 of property from one man to another1 in
  consideration of some price or        

recompense2 for there is no sale without
  a recompence4 ,p4 #ddf4    ,where the 
vendor ,,hath in himself the property of
 the goods sold1 he  hath the liberty of
 disposing of them to whom ever he      
pleases1 at any  time1 and in any       
manner4 ,ibid4 #ddf4    ,and            
notwithstanding any number of           
intervening sales1 if the original      
vendor1 who sold without having the     
property1 comes again into  possession  
of the goods1 the original owner may    
take them1 when found  in his hands who 
was guilty of the first breach of       
justice4 ,ibid4 p4  #dej4    #be ,a     
promise is in the nature of a verbal    
covenant1 and wants  nothing but the    
solemnity of writing and sealing to make
 it absolutely  the same4 ,if therefore 
it be to do any explicit act1 it is an  
express  contract1 as much as any       
covenant2 and the breach of it is an    
equal  injury4--,blackst4 ,com4 b4 iii4 
ch4 ix4 sect4 #c4    #bf ,all the       
reasonings of ,grotius1 on this1 and on 

every other point1  are intended to     
apply not only to the transactions of   
individuals1 but  to the conduct and    
affairs of nations4    #bg ,the most    
universal and effectual way of          
discovering the true  meaning of a law1 
when the words are dubious1 is by       
considering the  ,,reason and ,,spirit  
of it1 or the cause which moved the     
legislator to  enact it4 ,for when the  
reason ceases1 the law itself ought     
likewise to  cease with it4--,blackst4  
,introd4 ,com4 ch4 #b4 p4 #af4    #bh   
,sections ,x4 and ,,xi4 of the original 
are omitted in the                      
translation4--,,translator4    #bi ,from
 this simple origin of barter1 and      
exchange of things have  arisen all the 
various transactions of commerce4 ,and  
what was at first  an act of necessity  
between individuals1 has proved an      
inexhaustible  source of wealth and     
prosperity to nations4    #cj ,for the  
necessity of ,monopolies in certain     
cases1 see the note on  the xxi4 sect4  

of the #bnd4 chapter of this book4      
#ca ,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 supply4 ,by the just  policy  
of the laws of ,england1 combinations   
among victuallers or  artificers1 to    
raise the price of provisions1 or any   
commodities1 or  the rate of labour1 are
 in many cases severely punished by     
particular  statutes2 and1 in general1  
by statute #b and #c ,edwd4 ,,vi4 c4    
#ae1 with the  forfeiture of #aj l41 or 
twenty days imprisonment with an        
allowance of  only bread and water1 for 
the first offence2 #bj l4 or the pillory
 for  the second2 and #dj l4 for the    
third1 or else the pillory1 loss of one 
ear1 and perpetual infamy4 ,in the same 
manner1 by a constitution of  the       
,emperor ,zeno1 all monopolies and      
combinations to keep up the price  of   
merchandise1 provisions1 or workmanship1

 were prohibited1 upon pain  of         
forfeiture of goods and perpetual       
banishment4--,blackst4 ,com4 b4  iv4 c4 
#ab4 p4 #aei4--;,also the #ci ,geo4     
,,iii4 c4 #ha1 enacted1 that every      
person combining with others to advance 
their wages1 or decrease the  quantity  
of work1 or any way to affect or        
controul those who carried  on any      
manufacture or trade in the conduct and 
management thereof1  might be convicted 
before one justice of the peace1 and    
might be  committed to the common gaol  
for any time not exceeding three        
calendar  months1 or be kept to hard    
labour in the house of correction for   
two  months4--,christian's notes to     
,blackstone on the same place4    #cb   
,it is possible that an estate or a     
house may1 during the term  of a lease1 
be so increased or diminished in its    
value1 as to become  worth much more1 or
 much less1 than the rent agreed to be  
paid for it4  ,in some of which cases it
 may be doubted1 to whom1 of natural    

right1  the advantage or disadvantage   
belongs4 ,the rule of justice seems to  
be  this3 ,if the alteration might be   
,,expected by the parties1 the hirer    
must take the consequence2 if it could  
not1 the owner4 ,an orchard1 or  a      
vineyard1 or a mine1 or a fishery1 or a 
decoy1 may this year yield  nothing or  
next to nothing1 yet the tenant shall   
pay his rent2 and  if they next year    
produce tenfold the usual profit1 no    
more shall be  demanded2 because the    
produce is in its nature precarious1 and
 this  variation might be               
expected4--,paley's1 ,mor4 ,phil4 vol4  
#a4 p4 #aee1 #aef4    #cc ,the following
 passage from ,judge ,blackstone will   
both elucidate  the meaning and support 
the reasoning of our author4 ,though    
money  was originally used only for the 
purposes of exchange1 yet the laws  of  
any state may be well justified in      
permitting it to be turned to  the      
purposes of profit1 if the convenience  
of society 7the great end  for which    

money was invented7 shall require it4   
,and that the allowance  of moderate    
interest tends greatly to the benefit of
 the public1  especially in a trading   
country1 will appear from that generally
  acknowledged principle1 that commerce 
cannot subsist without mutual and       
extensive credit4 ,unless money         
therefore can be borrowed1 trade cannot 
be carried on3 and if no premium were   
allowed for the hire of money1  few     
persons would care to lend it2 or at    
least the ease of borrowing at  short   
warning 7which is the life of commerce7 
would be entirely at an  end4--,b4 ii4  
ch4 #cj4 p4 #ded1 #dee4    #cd ,the     
,mosaic law indeed prohibited the       
lending of money upon  usury4 ,but this 
was a political and not a moral precept4
 ,it only  prohibited the ,jews from    
taking usury of their brethren the      
,jews1 but  in express words permitted  
them to take it of a stranger3 which    
proves  that the taking of moderate     
usury1 or a reward for the use1 is not  

an  evil in itself1 since it was allowed
 where any but an ,israelite was        
concerned4--,blackst4 ,com4 b4 ii4 ch4  
#cj4 p4 #ded4 ,the objections made  to  
it by ,cicero and others1 our author    
observes1 are founded more upon  the    
consequences of usury than upon usury   
itself4 ,because it deters  men from    
borrowing4 ,but1 on the other hand1 if  
there were no advantage  attached to the
 lending of money1 none would be found  
willing to lend2  consequently the      
benefits arising from a facility of     
borrowing money to  carry on trade would
 be defeated4    #ce ,insurances being  
contracts1 the very essence of which    
consists in  observing the purest good  
faith and integrity1 they are vacated by
 any  the least shadow of fraud or undue
 concealment2 and1 on the other hand1   
being much for the benefit and extension
 of trade1 by distributing the  loss or 
gain among a number of adventurers1 they
 are greatly encouraged  and protected  
both by common law and acts of          

parliament4--,blackst4  ,com4 b4 ii4 ch4
 #cj4 p4 #dfj4    ,the contract of      
insurance is founded upon the purest    
principles  of morality and abstract    
justice4 ,hence it is necessary that the
  contracting parties should have       
perfectly equal knowledge or ignorance  
of every material circumstance          
respecting the thing insured4 ,if on    
either side there is any                
misrepresentation or allegatio falsi1 or
  concealment1 or suppressio veri1 which
 would in any degree affect the         
premium1 or the terms of the engagement1
 the contract is fraudulent and         
absolutely void4--,christian's note on  
the same passage4    #cf ,there is a    
distinction to be observed between the  
,,necessary1 and  the ,,voluntary law of
 nations4 ,vattel defines the           
,,necessary law to  be that which is    
always obligatory on the conscience1 and
 of which  a nation ought never to lose 
sight in the line of conduct she is to  
pursue in order to fulfil her duty1 but 

when there is a question of  examining  
what she may demand of other states1 she
 must consult the  ,,voluntary law1     
whose maxims are devoted to the safety  
and advantage of  the universal society 
of mankind4--,prelim4 sect4 #bh4    #cg 
,the writer quoted in the preceding note
 defines that obligation  to be         
,,internal1 which binds the conscience1 
and is deduced from the  rules of duty2 
and that to be ,,external1 which is     
considered relatively  to other men1 and
 produces some right between            
them4--,ibid4 sect4 #ag4    #ch ,a      
treaty may be more advantageous to one  
of the contracting  parties than to the 
other1 and yet contain nothing unjust4  
,frequently  a great monarch1 wishing to
 engage a weaker state in his interest1 
offers her advantageous conditions1     
promises her gratuitous succours1  or   
greater than he stipulates for himself2 
but at the same time he  claims a       
superiority of dignity1 and requires    
respect from his ally4  ,it is this last

 particular which renders ,,the         
,,alliance ,,unequal3 and to  this      
circumstance we must attentively advert2
 for with alliances of  this nature we  
are not to confound those in which the  
parties treat  on a footing of equality1
 though the more powerful of the allies1
  for particular reasons1 gives more    
than he receives1 promises his          
assistance gratis1 without requiring    
gratuitous assistance in his  turn1 or  
promises more considerable succours or  
even the assistance  of all his forces3 
here the alliance is equal1 but the     
treaty is  unequal1 unless indeed we may
 be allowed to say1 that1 as the party  
who makes the greater concessions has a 
greater interest in concluding  the     
treaty1 this consideration restores the 
equality4 ,thus1 at a  time when ,france
 found herself embarrassed in a         
momentous war with  the house of        
,austria1 and the cardinal de ,richelieu
 wished to humble  that formidable      
power1 he1 like an able minister1       

concluded a treaty  with ,gustavus      
,adolphus1 in which all the advantage   
appeared to be on  the side of ,sweden4 
,from a bare consideration of the       
stipulations of  that treaty1 it would  
have been pronounced an unequal one2 but
 the  advantages which ,france derived  
from it1 amply compensated for that     
inequality4--,vattel1 b4 ii4 ch4 #ab4   
sect4 #age4 p4 #bjj1 #bja4    #ci ,the  
nature of oaths1 contracts and promises 
having been so fully  discussed in the  
preceding chapters1 the translation     
proceeds from the  thirteenth to the    
fifteenth chapter of the original1 the  
fourteenth  being in a great measure    
only a repetition of our author's former
  arguments upon the                    
subject4--,,translator4    #dj ,on this 
subject the opinions of our author1 and 
those of ,vattel  will reflect light    
upon each other4 ,from the latter of    
whom1 the  following extracts will place
 the matter in a clear point of view4   
,if  a public person1 an ambassador1 or 

a general of an army1 exceeding  the    
bounds of his commission1 concludes a   
treaty or a convention  without orders  
from the sovereign or without being     
authorised to do  it by virtue of his   
office1 the treaty is null1 as being    
made without  sufficient powers3 it     
cannot become valid without the express 
or tacit  ratification of the sovereign4
 ,the express ratification is a written 
deed by which the sovereign approves the
 treaty1 and engages to  observe it4    
,the tacit ratification is implied by   
certain steps which  the sovereign is   
justly presumed to take only in         
pursuance of the  treaty1 and which he  
could not be supposed to take without   
considering  it as concluded and agreed 
upon4 ,thus1 on a treaty of peace being 
signed by public ministers who have even
 exceeded the orders of their           
sovereigns1 if one of the sovereigns    
causes troops to pass on the  footing of
 friends through the territories of his 
reconciled enemy1 he  tacitly ratifies  

the treaty of peace4 ,but if1 by a      
reservatory clause  of the treaty1 the  
ratification of the sovereign be        
required--as such  reservation is       
usually understood to imply an express  
ratification1  it is absolutely         
requisite that the treaty be thus       
expressly ratified  before it can       
acquire its full force4 ,by the ,latin  
term sponsio1 we  express an agreement  
relating to affairs of state1 made by a 
public  person1 who exceeds the bounds  
of his commission1 and acts without the 
orders or command of the sovereign4 ,the
 person who treats for the state  in    
this manner without being commissioned  
for the purpose1 promises of  course to 
use his endeavours for prevailing on the
 state or sovereign  to ratify the      
articles he has agreed to3 otherwise his
 engagements  would be nugatory and     
illusive4 ,the foundation of this       
agreement can be  no other1 on either   
side1 than the hope of such             
ratification4--,vattel1  b4 ii4 ch4 xiv4

 sect4 #bjh1 #bji1 p4 #bai4 ,the general
 of an army1 he  proceeds1 has indeed by
 virtue of his commission1 a power to   
enter1  as circumstances may require1   
into a private convention1--a compact   
relative to himself1 to his troops1 or  
to the occurrences of war3 but  he has  
no power to conclude a treaty of peace4 
,he may bind himself1  and the troops   
under his command1 on all occasions     
where his functions  require that he    
should have the power of treating2 but  
he cannot bind  the state beyond the    
extent of his commission4--,ibid4 sect4 
#baj4 p4  #bbj4    #da ,the right of    
postliminium is that1 in virtue of      
which1 persons  and things taken by the 
enemy are restored to their former      
state1 on  coming again into the power  
of the nation to which they belonged4   
,vattel1 b4 iii4 ch4 xiv4 sect4 #bjd4   
#db ,personal creditors are in the      
,roman law called ,chirographarii1      
because they commonly have some bond or 
note of hand for the debt4  ,and where  

there are several such creditors1 if the
 debtor's estate is  not sufficient to  
satisfy them all1 each has his share    
assigned in  proportion to the largeness
 of the debt1 without any regard to the 
time1 when it was contracted4 ,but in   
mortgages it was different1 the  debt of
 longest standing was to be first       
satisfied4--,barbeyrac4    #dc ,when the
 ,roman army had passed under the yoke  
at ,caudium1 upon  their return1 when   
the matter was referred to the senate1  
it was said  that as the convention was 
made without the consent of the senate  
or  people1 the ,roman people were not  
bound by it1 and a proposal was made    
that those who had signed the treaty    
should again be given up to the  enemy1 
thus the people would be released from  
the engagement4 ,this  proposal was     
agreed to1 and a decree to that purpose 
passed4    #dd ,luctatius had inserted  
this clause that the agreement should be
  good and valid1 only in case it was   
approved by the ,roman people4--,liv4   

lib4 xxi4 c4 xix4 ,see likewise         
,polybius1 lib4 iii4 c4 xxi4    #de ,in 
all human affairs1 where absolute       
certainty is not at hand  to point out  
the way1 we must take probability for   
our guide4 ,in  most cases it is        
extremely probable that the parties have
 expressed  themselves conformably to   
the established usage3 and such         
probability  ever affords a strong      
presumption1 which cannot be overruled  
but by  a still stronger presumption to 
the contrary4 ,camden1 in his history   
of ,queen ,elizabeth1 gives us a treaty1
 in which it is expressly said  that the
 treaty shall be precisely understood   
according to the force  and appropriate 
signification of the terms4--,vattel1 b4
 ii4 ch4 xvii4  sect4 #bga4 ,on the same
 subject1 ,judge ,blackstone says1 that 
words are  generally to be understood in
 their usual and most known             
signification2  not so much regarding   
the propriety of grammar1 as their      
general and  popular use4--,introduct4  

to ,com4 ch4 ii4 p4 #ei4    #df ,the    
word ,,day is understood of the         
,,natural ,,day1 or of the time  during 
which the sun affords us his light1 and 
of the ,,civil ,,day1 or  the space of  
twenty-four hours4 ,when it is used in a
 convention to  point out a space of    
time1 the subject itself manifestly     
shews that the  parties mean the civil  
day1 or the term of twenty-four         
hours4--,vattel1  b4 ii4 ch4 xvii4 sect4
 #bhj4    #dg ,it is a fundamental rule 
of construction1 that penal statutes    
shall be construed strictly1 and        
remedial statutes shall be construed    
liberally4 ,it was one of the laws of   
the twelve tables of ,rome1  that       
whenever there was a question between   
liberty and slavery1 the  presumption   
should be on the side of liberty4 ,this 
excellent principle  our law has adopted
 in the construction of penal statutes3 
for  whenever any ambiguity arises in a 
statute introducing a new penalty  or   
punishment1 the decision shall be on the

 side of lenity and mercy2  or in favour
 of natural right and liberty3 or1 in   
other words1 the  decision shall be     
according to the strict letter in favour
 of the  subject4 ,and though the judges
 in such cases may frequently raise and 
solve difficulties contrary to the      
intention or the legislature1 yet no    
further inconvenience can result1 than  
that the law remains as it was  before  
the statute1 and it is more consonant to
 principles of liberty1  that the judge 
should acquit whom the legislator       
intended to punish1  than that he should
 punish whom the legislator intended to 
discharge  with impunity4 ,but remedial 
statutes must be construed according to 
the spirit3 for in giving relief against
 fraud1 or in the furtherance  and      
extension of natural right and justice1 
the judge may safely go  even beyond    
that which existed in the minds of those
 who framed the  law4--,christian's     
,notes on ,blackst4 ,comm4 ,introd4 p4  
#hg4    #dh ,the case of a promise made 

on the supposition of a posthumous      
child's dying1 instanced by our author  
in this place1 bears so near a          
resemblance to that of a father's       
bequeathing his property to another1    
believing his son to be dead1 that it is
 omitted in this chapter having  been   
already given under the head of         
erroneous promises in the xi4  chapter  
and #fth section of this                
book4--7,translator47    #di ,the       
variety of human transactions cannot be 
comprised within  general rules4        
,occasional decrees therefore become    
requisite2 which  vary with each        
variation of circumstances1 for the     
measure of what is  indefinite must be  
indefinite itself1 like the leaden ruler
 in the  ,lesbian architecture1 which   
changes its own shape according to that 
of the stones to which it is applied4   
,it is manifest1 therefore1 that  equity
 is a species of justice1 and contrasted
 with another species  to which it is   
preferable4 ,a man of equity is he who  

deliberately and  habitually exercises  
this virtue2 who prefers it in all his  
dealings  to the rigour of justice2 and 
who1 even when the law is on his side1  
will not avail himself of this advantage
 to treat others injuriously or         
unhandsomely4--,aristot4 ,eth4 b4 v4 ch4
 x4    #ej ,owing to circumstances there
 may be a variation in the conduct1  and
 yet no change in the principles of a   
state4 ,this must frequently  happen in 
the commercial regulations between      
different countries1 who  are obliged to
 vary their means to secure the unity of
 their end4 ,or  if in a treaty between 
two nations1 it is declared there shall 
be  ,,perpetual amity1 and a subsequent 
declaration of war by one of the        
parties pronounces such amicable        
relations to be at an end1 here there   
is no variation in ,,principle but in   
,,circumstances1 which render such a    
dissolution of the amity1 that was      
originally intended to be perpetual1    
necessary to the welfare and            

preservation of that power1 the sole    
object of all treaties4    #ea ,to      
illustrate the nature of ,,general ,,and
 ,,particular cases1 the  following     
example is taken from the               
,puffendorf3--,one law forbids us to    
appear in public with arms on holidays3 
another law commands us to turn  out    
under arms and repair to our posts1 as  
soon as we hear the sound of  the alarm 
bell4 ,the alarm is rung on a holiday4  
,in such case we must  obey the latter  
of the two laws1 which creates an       
exception to the  former4--,jur4 ,gent1 
lib4 v4 c4 xii4 sect4 #bc4    #eb ,the  
deputies sent to the assembly of the    
states of a kingdom1  or a commonwealth 
are not public ministers like           
ambassadors1 as they  are not sent to   
foreign powers2 but they are public     
persons1 and1 in  that respect1 are     
possessed of every exemption and        
immunity1 that  are necessary to the    
discharge of their functions4--,vatt4 b4
 iv4  ch4 vii4 sect4 #aji4 ,of this     

nature are the privileges enjoyed by the
  representatives of the ,british       
people1 and denominated the ,,privileges
  ,,of ,,parliament4    #ec ,nothing    
forms a more striking contrast between  
ancient and modern  war1 then the       
personal animosities1 which seemed to   
operate upon  the combatants in the     
former1 and the public and national     
objects1  ,,without ,,any ,,personal    
,,concern1 upon which the latter are    
undertaken4  ,peruse any ancient        
historian1 or the battles in ,homer and 
,virgil1  ,,which ,,though ,,fictions1  
,,describe ,,the ,,manners ,,of ,,the   
,,age1 and you see  combatants engaged1 
on whom the laws of nature and of       
nations seem to  have lost their force4 
,read the accounts of modern warfare and
 you  find hostilities commenced1 not   
from private animosity1 but from some   
great and national object1 in the       
prosecution of which the feelings of    
the individuals appointed to conduct    
them are not the only springs of        

action4    #ed ,sections ,,xvi and      
,,xvii of the original1 relating only to
  the refutation of certain abstruse    
opinions1 are omitted in the            
translation4--7,translator47    #ee     
,section ,v of the original is omitted  
in the  translation4--,,translator4     
#ef ,thus letters of marque and         
reprisal1 by which individuals are      
enabled to redress their own wrongs1    
must issue from the sovereign  power1   
otherwise the hostilities of such       
individuals would be unlawful4  ,so that
 here the ,,action would be unlawful1   
that is unjust1 unless  performed by an 
,,agent1 who had a commission from      
public authority4    #eg ,the three     
rules above laid down by our author may 
be illustrated  by the three following  
propositions4--    ,in the first place1 
it cannot be denied1 that war1 in the   
,,abstract1 is  an evil1 but then it is 
necessary to consider1 whether it is not
 an  evil that must1 in many cases1 be  
submitted to in order to avoid still    

greater calamities4    ,secondly1 in the
 prosecution of a war1 where the        
advantages1 or evils  are doubtful1 it  
is necessary to endeavour after the     
attainment of  new confederacies or     
alliances1 that may compensate for the  
losses  sustained1 or may open out new  
channels of trade and commerce1 which   
may supply the place of those that have 
been closed by the immediate  war4      
,as an illustration of the third point1 
we may adduce the conduct of  ,king     
,william1 after the ,british ,cabinet   
that met at ,tunbridge ,wells1  ,august 
#bh1 #afih1 represented to him how      
inadequate the spirit of the  nation was
 to enter into a new war1 and to bear   
additional burdens1  concluding1 this is
 the truth of the fact upon which your  
,majesty will  determine what resolution
 ought to be taken4 ,his ,majesty did   
determine  upon war1 as the least of all
 the evils which faced his people1      
notwithstanding the ,,apparent          
inadequacy of his means4 ,and in that   

great war1 says ,mr4 ,burke1 carried on 
against ,louis the ,,xiv1 for near      
eighteen years1 government spared no    
pains to satisfy the nation1 that       
though they were to be animated by a    
desire of glory1 glory was not  their   
ultimate object3 but that every thing   
dear to them1 in religion1  in law1 in  
liberty1 every thing1 which as freemen1 
as ,englishmen1 and  as citizens of the 
great commonwealth of ,christendom1 they
 had at  heart1 was then at             
stake4--,lett4 on ,regic ,peace1 p4 #ij4
    #eh ,thus when a ship makes an      
appearance of mounting more guns than   
she really carries1 in order to deter an
 enemy from attacking her1 this  may be 
considered as one of those negative     
stratagems1 or stratagems of            
dissimulation1 to which our author      
alludes4    #ei ,besides the ,,necessary
 law of nations1 which is ,,equally1 and
 at  ,,all ,,times binding upon ,,all   
states1 there is a ,,positive law of    
nations1  consisting of ,,the           

,,voluntary1 ,,the ,,conventional and   
,,the ,,customary law4  ,all of which   
proceed from the will of nations1--the  
,,voluntary from  their presumed        
consent1 the ,,conventional from an     
express consent1 and  the ,,customary   
from tacit consent3 and as there can be 
no other mode of  deducing any law from 
the will of nations1 there are only     
these three  kinds of ,,positive ,,law  
,,of ,,nations4--,vattel1 ,prelim4      
,sect4 #bg4    #fj ,see b4 ii4 ch4 xxi4 
sect4 #b4 of this treatise4    #fa ,see 
b4 ii4 ch4 xxiii4 sect4 #g4 ibid4    #fb
 ,but such captures cannot be made      
without authority from the  sovereign4  
#fc ,the translation proceeds from the  
,,xv4 to the ,,xxiii4 ,section of the   
original1 the intermediate ,sections    
being only a confirmation of the        
preceding arguments by examples from    
ancient history4--,,translator4    #fd  
,our author here speaks of things taken 
in battle4 ,for upon the  surrender of  
towns1 in almost all articles of        

capitulation it is  stipulated1 that the
 ,general and other superior officers1  
and the  officers of regiments shall    
preserve their swords and their private 
baggage1 and the noncommissioned        
officers and soldiers shall preserve    
their knapsacks4    #fe ,the end of such
 a law is to animate soldiers and       
privateers to  pursue robbers and       
pirates1 by the hopes of possessing     
things taken  even from the subjects of 
the state4--,barbeyrac4    #ff ,the     
tenth ,chapter chiefly containing       
remarks that have been  interspersed in 
other parts of the work1 is omitted     
here4--,,translator4    #fg ,see b4 ii4 
chap4 ii4 sect4 #i4    #fh ,see b4 iii4 
ch4 ii4 of this work4    #fi ,the       
translation proceeds from the ,,xiii4 to
 the ,,xv4 ,chapter of the              
original4--,,translator4    #gj ,b4 ii4 
ch4 xv4 sect4 #g4    #ga ,the difficulty
 of recognising things of this nature1  
and the  endless disputes1 which would  
arise from the prosecution of the       

owner's  claims to them1 have been      
deemed motives of sufficient weight for 
the  establishment of a contrary        
practice4 ,it is therefore with reason1 
that moveables or booty are excepted    
from the right of postliminium1  unless 
retaken from the enemy immediately after
 his capture of them2 in  which case the
 proprietor neither finds a difficulty  
in recognising his  effects1 nor is     
presumed to have relinquished           
them4--,vattel b4 iii4  ch4 xiv4 sect4  
#bji4    #gb ,b4 ii4 ch4 x4 sect4 #i4   
#gc ,the translation proceeds from the  
xviith to the xixth chapter of  the     
original4--,,translator4    #gd         
,sections ,,vi1 ,,vii1 ,,viii1 ,,ix and 
,x of the original are omitted in  the  
translation4 7,translator47    #ge ,b4  
ii4 ch4 vii4 sect4 #b4    #gf ,the      
necessity of making peace authorises the
 ,sovereign to dispose  of the property 
of individuals2 and the eminent dominion
 gives him a  right to do it4 ,every    
thing in the political society ought to 

tend to  the good of the community2 and 
since even the powers of the citizens   
are subject to this rule1 their property
 cannot be excepted4 ,the state  could  
not subsist1 or constantly administer   
the public affairs in the  most         
advantageous manner1 if it had not a    
power to dispose occasionally  of all   
kinds of property4--,vattel1 b4 iv4 ch4 
ii4 sect4 #ab4 ibid4 b4  i4 ch4 xx4     
sect4 #bdd4    #gg ,some damages are    
done deliberately and by way of         
precaution1 as  when a field1 a house1  
or a garden1 belonging to a private     
person1  is taken for the purpose of    
erecting on the spot a tower1 rampart1  
or any other piece of fortification1--or
 when his standing corn1  or his        
storehouses are destroyed1 to prevent   
their being of use to  the enemy4 ,such 
damages are to be made good to the      
individual1 who  should bear only his   
quota of the loss4 ,but there are other 
damages1  caused by inevitable          
necessity1 as for instance1 the         

destruction  caused by the artillery in 
retaking a town from the enemy4 ,these  
are  merely accidents1 they are         
misfortunes1 which chance deals out to  
the  proprietors on whom they happen to 
fall4 ,the sovereign ought indeed to    
shew an equitable regard for the        
sufferers1 if the situation of his      
affairs will admit of it3 but no action 
lies against the state for  misfortunes 
of this nature1--for losses1 which she  
has occasioned1 not  wilfully1 but      
through necessity and mere accident1 in 
the exertion of  her rights4 ,the same  
may be said of damages caused by the    
enemy4 ,vat4  b4 iii4 ch4 xv4 sect4     
#bcb4    #gh ,see b4 ii4 ch4 xv4 sect4  
#ab4    #gi ,because then the condition 
of the contracting parties being        
unequal1 there is great reason to       
believe1 that he1 to whose  disadvantage
 the inequality is1 has pretended to    
engage himself as  little as possible3  
and it was the other's business who was 
to have  the benefit of it1 to have the 

thing explained in as clear a manner as 
possible4--,barbeyrac4    #hj ,sections 
,,xlii1 ,,xliii1 ,,xliv1  ,,xlv1 of the 
original1 relating  to decisions by lot 
and single combat1 are omitted in the   
translation4--,,translator4    #ha ,the 
,,xxiii ,chapter of the ,original1 on   
,private ,faith in ,war1 is  omitted in 
the translation4--,,translator4         
,transcribers' ,notes3      ,punctuation
 and hyphenation were made consistent   
when a predominant  preference was found
 in this book2 otherwise they were not  
changed4  ,in particular1 inconsistent  
punctuation in ,biblical citations and  
omitted commas or periods in several    
places have not been remedied4          
,ambiguous hyphens at the ends of lines 
were retained4    ,spelling was made    
consistent when a predominant preference
 was found  in this book1 or when some  
occurrences of a word matched modern    
usage  while other occurrences did not2 
otherwise1 all variations were          
retained4 ,words spelled differently in 

quoted material than in the  primary    
author's text were not changed4         
,simple typographical errors were       
corrected2 occasional unbalanced        
quotation marks remedied when           
unambiguous1 and otherwise retained4    
,these are noted below4    ,several     
chapters were omitted from the ,english 
translation of which  this is a         
transcription4 ,the reasons for this are
 given in the  footnotes4    ,the ,index
 was not checked for proper             
alphabetization or correct page         
references4    ,footnotes1 originally at
 the bottom pages1 have been collected  
and moved  to the end of this e,book4   
,controul is always spelled that way in 
the original book4    ,commit sometimes 
is used where modern practice would use 
commits4    ,text uses both sometimes   
and some times1 anything and any thing4 
,the signatures on pages ix and #ag were
 actual signatures4    ,some footnotes  
reference ,chapters that were omitted   
from this translation4    ,page #c3     

,jugemens d' ,olron likely is a misprint
 for ,jugements d'  ,olron2 ,saurez may 
be a misprint for ,suarez4    ,page #ba3
  dikaimata was misprinted as   dikamata
 and has been changed here4    ,page    
#dc3 ,no matching closing quotation mark
 found for sentence  beginning ',how can
 kings serve the ,lord'4    ,page #ee3  
,no matching closing quotation mark     
found for clause beginning  'what can be
 done by a magistrate'4    ,page #ei3   
,no matching closing quotation mark     
found for sentence  beginning ',for     
though ,,under ,,some'4    ,page #gc3   
archas polemn was misprinted as         
archaspolemn2 changed here4    ,page    
#gh3 ,no matching opening quotation mark
 found for sentence ending  'whom he    
himself apprehended injury or           
destruction4'    ,page #ajg3 will not   
continue to be same river likely is     
missing the4    ,page #aaj3 ,no matching
 closing quotation mark found for clause
 beginning  'that he would restore'4    
,page #aic3 what is required to be done 

at a was printed as to be one  at2      
changed here4    ,page #bag3 sun-set was
 printed that way4    ,page #bah3       
,goliah was printed that way4    ,page  
#bdi3 uninjured or endangered may be a  
misprint for injured4    ,page #bfg3    
aitias was misprinted as  aitias2       
changed here4    ,page #bhf3            
,transcriber added closing quotation    
mark at the end of the  paragraph ending
 with 'or even imminent danger4'        
,page #caj3 the colon in which is an act
 of justice3 in the next place  was     
poorly printed1 and may be either a     
different punctuation mark or  just a   
space4    ,page #cad3 the closing       
quotation mark in 'denomination of      
pirates and  robbers4 ,with' was added  
by the ,transcriber4    ,page #cba3     
,transcriber added a comma in by that   
act1 voluntarily  because there was     
excess space between the words1 which   
suggested a  misprint4    ,page #cgh3 to
 remain neuter was printed that way4    
,footnote #ah3 ,transcriber added a     

closing quotation mark at the end of    
the footnote4    ,footnote #ai3         
,transcriber added a closing quotation  
mark after 'my  neglect or refusal4'