of the leading men, with death, as a chief promoter of the war, leaving the rest to the mercy or cruelty of Vitellius.

XIII. Historians sometimes account for this right of putting enemies to death, especially prisoners, or suppliants, either on the score of retaliation, or for obstinate resistance. These may sometimes be the real, but cannot be the JUSTIFIABLE motives of such proceedings. For the law of retaliation, strictly and properly so called, must be directly enforced upon the person of the delinquent himself. Whereas, in war, what is called retaliation frequently redounds to the ruin of those, who are no way implicated in the blame. The general consequences of war are thus described by Diodorus Siculus, "they could not be ignorant, says he, having learnt from experience, that all being involved in the common fortune of war, they are liable on both sides in defeat, to suffer the same calamities, which they themselves would have inflicted upon the conquered party."

But as the Neapolitans reply to Belisarius, in Procopius, no one can he thought deserving of punishment for a resolute adherence to the side on which he is engaged, especially when actuated by natural and just motives in his choice of that side. So far from incurring guilt by such a resolution, it is on the other hand more criminal for any one to desert his post: and so it was judged by the military laws of ancient Rome. Livy says, it was a capital offence, for which no fear of danger could be pleaded as an excuse. So that in the rigid application of this right, owING TO ITS IMPORTANCE, every one is left to use his own discretion, and there may be times and circumstances, in which the law of nations will justify its full exertion.

XIV. The same right was exercised upon hostages also, not only upon those who had bound themselves, as it were, by convention, but even upon those, who had been delivered up by others. Two hundred and fifty hostages were once massacred by the Thessalians, and the Volsci Aurunci to the amount of three hundred by the Romans. It is to be observed that children were sometimes given, as hostages, which we find was done by the Parthians, and by Simon, who was one of the Maccabees. And in the times of Porsena it was usual to deliver women, as hostages: a practice, which, as Tacitus informs us, was followed by the Germans.

XV. As the law of nations permits many things, in the manner above explained, which are not permitted by the law of nature, so it prohibits some things which the law of nature allows. Thus spies, if discovered and taken, are usually treated with the utmost severity. Yet there is no doubt, but the law of nations allows any one to send spies, as Moses did to the land of promise, of whom Joshua was one.

Persons of that description may sometimes be LAWFULLY employed by those, who are engaged in an EVIDENTLY just war. Others too, who have not such evident proofs of the justice of their cause, may plead the rights of war as a vindication for employing such persons.

But if any are to be found, who disdain to avail themselves of such a privilege, or opportunity, no argument either FOR, or AGAINST the LAWFULNESS of employing spies can be drawn from their conduct, which proceeds rather from a nobleness of mind, and a confidence in open strength, than from any decided opinion upon the subject.

CHAPTER V.

ON THE RIGHT TO LAY WASTE AN ENEMY'S COUNTRY, AND CARRY OFF HIS EFFECTS.

An enemy's property may be wasted and plundered — Things deemed sacred, how far exempted-Stratagem, how far permitted.

I. CICERO, in the third book of his offices, has said that there is nothing repugnant to the LAW OF NATUre in spoiling the effects of an enemy, whom by the same law we are authorized to kill. Wherefore it is not surprising that the same things should be allowed by the LAW OF NATIONS. Polybius, for this reason, in the fifth book of his history, maintains, that the laws of war authorise the destruction of an enemy's forts, harbours, and fleets, the seizure of his men, or carrying off the produce of his country, and every thing of that description. And we find from Livy that there are certain rights of war, by which an enemy must expect to suffer the calamities, which he is allowed to inflict, such as the burning of corn, the destruction of houses, and the plunder of men and cattle. Almost every page of history abounds in examples of entire cities being destroyed, walls levelled to the ground, and even whole countries wasted by fire and sword. Even in cases of surrender, towns have sometimes been destroyed, while the inhabitants were spared - an example of which is given by Tacitus, in the taking of Artaxata by the Romans; the inhabitants opened their gates and were spared, but the town was devoted to the flames..

II. Nor does the law of nations, in itself, considered apart from other duties, which will be mentioned hereafter, make any exemption in favour of things deemed sacred. For when places are taken by an enemy, all things without exception, whether sacred or not, must fall a sacrifice. For which it is assigned as a reason, that things which are called sacred, are not actually excepted from all human uses, but are a kind of public property, called sacred indeed from the general purposes, to which they are more immediately devoted. And as a proof of this, it is usual, when one nation surrenders to

another state or sovereign, to surrender, along with other rights, every thing of a sacred kind, as appears by the form cited from Livy in a former part of this treatise.

And therefore Ulpian says, that the public have a property in sacred things. Conformably to which Tacitus says, that "in the Italian towns all the temples, the images of the Gods, and every thing connected with religion belonged of right to the Roman people." For this reason a nation, as the Lawyers, Paulus and Venuleius openly maintain, may, under a change of circumstances, convert to secular uses things, that have before been consecrated: and an overruling necessity may justify the hand, which has formerly consecrated the object in employing it as one of the resources and instruments of war. A thing which Pericles once did under a pledge of making restitution: Mago did the same in Spain, and the Romans in the Mithridatic war. We read of the same actions done by Sylla, Pompey, Caesar, and others. Plutarch in his life of Tiberius Gracchus says that nothing is so sacred and inviolable, as divine offerings: yet no one can hinder these from being removed or applied to other purposes at the pleasure of the state. Thus Livy mentions the ornaments of the temples, which Marcellus brought from Syracuse to Rome, as acquisitions made by the right of war.

III. What has been said of sacred things and edifices applies also to another kind of solemn fabrics, and those are sepulchral structures, which may be considered not merely as repositories of the dead, but as monuments belonging to the living, whether families or states. For this reason Pomponius has said, that these, like all other sacred places, when taken by an enemy may lose their inviolability, and Paulus is of the same opinion, observing that we are not restrained by any religious scruple from using the sepulchres of an enemy: for the stones, taken from thence, may be applied to any other purpose. But this right does not authorise wanton insult, offered to the ashes of the dead. For that would be a violation of the solemn rights of burial, which, as it was shewn in a preceding part of this work, were introduced and established by the law of nations.

IV. Here it may be briefly observed, that, according to the law of nations any thing, belonging to an enemy, may be taken not only by open force, but by stratagem, provided it be unaccompanied with treachery.

CHAPTER VI.

ON THE ACQUISITION OF TERRITORY AND PROPERTY BY RIGHT OF CONQUEST.

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 treasury, or to those, who take them-Places sometimes given up to be plundered by the soldiery Different methods of dividing spoils - Peculation, a portion of the spoils sometimes given to allies, 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 wars.

I. BESIDES the impunity allowed to men for certain actions, which have been mentioned before, there are other consequences and effects, peculiar to the law of nations, attending solemn and formal war. The law of nature indeed authorises our making such acquisitions in a just war, as may be deemed an equivalent for a debt, which cannot otherwise be obtained, or as may inflict a loss upon the aggressor, provided it be within the bounds of reasonable punishment. According to this right, as we find in the fourteenth chapter of Genesis, Abraham devoted to God a tenth part of the spoils, which he had taken from the five kings: and the inspired writer in the seventh chapter of his Epistle to the Hebrews gives the same interpretation of this passage. In the same manner the Greeks too, the Carthaginians, and the Romans, devoted a tenth portion of the spoils of war to their deities. Jacob, in making a particular bequest to Joseph above his brethren, says, "I have given to thee one portion above thy brethren, which I took out of the hand of the Amorite with my sword, and with my bow." In this