ner, before he who has the supreme power can be attacked for the debt or delict of his subject, there ought to be interposed a formal demand which may put him in the wrong, so that he may be either supposed to be the author of a damage, or to have himself committed a delict according to the principles already laid down.

3 And even when Natural Law does not require such a formal demand to be made, yet it is decent and laudable that it be interposed; in order, for instance, to avoid offense, or to give room for making atonement for the delict by repentance and satisfaction, as we have said in speaking of the ways of avoiding war; so that extremes are not to be tried in the first place. And to the same purpose is the precept which God gave the Hebrews, that before besieging a city they should invite it to make peace. This command, however, was specially given to the Hebrew people, and therefore is wrongly by some confounded with the Law of Nations. Cyrus, when he had come into the country of the Armenians, before he did any harm to any one, sent persons to the king to ask for the appointed tribute and soldiers; thinking that more humane than to march upon him without notice, as Xenophon says in the Cyropædia. But by the Law of Nations, a declaration of war is requisite in all cases to give occasion for these peculiar effects; not on both sides, but on one.

VII. 1 But such a declaration is either conditional or pure; conditional, when it is conjoined with a demand for the restoration of the things in question. But under the demand of restoration of things, the Fecial Law comprehended not only demands by the right of ownership, but also the promotion of anything which was due for civil claims or criminal acts; as Servius rightly explains. Hence the formula requiring that the things be restored, satisfied, given up: where given up, as we have elsewhere explained, is to be understood that the persons summoned may be allowed to prefer themselves punishing the guilty person. This demand was called clarigation, as Pliny testifies. We have in Livy a conditional declaration : that this injury, except it were remedied by those who had done it, they themselves would repel: and in Tacitus, except they exact punishment of the offenders, he would make a promiscuous slaughter. And in the same way in the Supplices of Euripides; and Statius in his narration of the same matter in the Thebais. Polybius calls this demanding satisfaction; the old Romans, condicere.

A pure declaration is what is especially called indictio.

2 But a conditional declaration is [often] followed by a pure declaration, though this is not necessary, but is done ex superabundanti. And the formulæ are given, accusing the enemy of injustice. But that in this case, as we have said, such declaration is not necessary, appears from this, that it might be made to the nearest town occupied by troops, as the Feciales announced, when they were consulted about the case of Philip of Macedon, and afterwards of Antiochus, since the first declaration of war was to be made by him who

was attacked. In the war with Pyrrhus, the declaration was made to one of the soldiers of Pyrrhus, and this was done in the Circus of Flaminius, where the soldier was compelled formally to purchase his place in order to be a party to the cause, as Servius relates on the ninth book of the Eneid.

3 That the formality is unnecessary, is also proved by this, that war is often declared on both sides, as the Peloponnesian war by the Corcyreans and Corinthians, though it was sufficient that it should be declared on one side only.

VIII. There are some things which belong to the institutions of certain nations, not to the Law of Nations in general; as the Caduceus, or Herald's rod among the Greeks; the sagmina (sacred herbs,) and bloody spear, among the Equicolæ at first, and the adoption of this by the Romans; the renunciation of friendship and alliance, if any had existed; the thirty appointed days after the demand of restitution; the sending of the spear a second time; and other observances of the same kind, which are not to be confounded with things which belong to the Law of Nations in general. For Arnobius informs us that the greater part of those things had ceased to be practised in his time; and even in the age of Varro some were omitted. The third Punic war was declared and commenced at the same time. And Mæcenas in Dio holds that some of these belong especially to a popular state.

IX. A war declared against him who has the supreme authority in a people is conceived as declared, at the same time, not only against all who are his subjects, but also against all who join themselves to him, as accessories to him; and this is what the [feudal] jurists say, that he who defies the prince defies his adherents; for to declare war they call to defy. This is to be understood of that especial war which is carried on against the person mentioned in the declaration : thus when war had been declared against Antiochus, it was not thought proper to declare it against the Etolians separately, because they openly joined Antiochus; the Feciales answered that the Etolians had of themselves declared war against themselves.

X. But if, when that war is over, a people or a king are to be attacked on account of aid supplied, then, in order to obtain the effects of the Law of Nations, there is need for a new declaration of war. And therefore it was rightly said that those were not just wars according to the Law of Nations, which Manlius carried on against the Gallo-Grecians, or Cæsar against Ariovistus: for they were then attacked, not as accessories in another's wars, but as principals; and to this effect, by the Law of Nations, a declaration of war was required, and by the constitution of Rome, a new edict of the people. For what had been said in the decree against Antiochus: Do you decree that war should take place with Antiochus and his followers? which form was also used with regard to Perseus, seems to require to be understood, as long as the war with Antiochus or with Perseus continued, and with regard to those who really joined in the war.

XI. The cause why nations require a declaration of war for that kind of war which we call just by the Law of Nations, is not that given by some, that nothing may be done clandestinely or fraudulently; for that is a matter rather of bold frankness than of right; as some nations are related to have announced beforehand the day and place of battle: but that it might be clearly known that the war was undertaken, not as a venture of private persons, but by the will of the two peoples, or their heads: for from this public character arise peculiar effects, which do not take place either in a war carried on against pirates, or in one which a king makes against his subjects. And so Seneca speaks with a distinction, of war declared against neighbours, or carried on against our own citizens.

XII. For what some remark, and illustrate by examples, that even in such wars, what is captured becomes the property of the captors, is true, but on one side only, and that by Natural Law, not by the instituted Law of Nations; since that regards only nations and their dealings with nations, not those who are without nation, or are only part of a nation. They err in this, that they think that a war undertaken for the purpose of defending one's self or one's property, does not need to be preceded by a declaration of war; for it by all means needs such an introduction: not indeed simply, but for the sake of leading to the effects we have already partly explained, and shall explain further.

XIII. Nor is it true even that a war may not be begun immediately after it has been declared: which Cyrus did in Armenia, and the Romans towards the Carthaginians, as we have already said. For a declaration of war does not, by the Law of Nations, require any definite time after it. But it may be requisite that, by Natural Law, some time may be required, in consequence of the quality of the business as for instance, if property is required to be restored, or criminals to be punished, and this is not refused. For then, so much time is to be given as may conveniently suffice for doing what is asked.

XIV. But even if the rights of legation be violated, it does not follow that a declaration of war is not needed for the effects to which I refer: but it is sufficient if it be made in such way as it may safely be made, that is, by letter: as also it is usual to make summonses and denunciations in unsafe places.

Y

CHAPTER IV.

Of the right of killing enemies in formal War, and of other violence against the person.

I.

ON

N the line of Virgil, Æn. x. 14, in which he says that after the declaration of war it will be lawful to ravage the enemy, Servius Honoratus gives an account of the origin of the Feciales, and the mode of claiming what had been taken from the Romans, and if satisfaction were not given by restoration, declaring war by throwing a spear. Rapere, to ravage, and satisfacere, to restore, were words of a technical comprehensiveness. And thus we learn that a war declared between two nations, or their heads, has certain peculiar and appropriate effects, which do not follow from the nature of war itself: and this agrees with what we have already adduced from the Roman lawyers.

II. 1 But Virgil said licebit, it will be lawful; let us see what that implies. For sometimes that is said to be lawful which is every way right and pious; though something else might be done which is more laudable; as St Paul says, all things (of a certain kind) are lawful for me, but all things are not expedient. Thus it is lawful to marry, even when celibacy is better; it is lawful to marry a second time, though once only is better; it is lawful for a Christian husband to leave his pagan wife (in certain circumstances), but he may keep her: as Augustine says, both are lawful before God, but not alike expedient. Ulpian says, that a seller, after the day appointed for delivering the

wine, may let it run away; but though he may thus shed it, if he do not, he is rather to be praised.

2 In other cases a thing is said to be lawful, not which is agreeable to piety and duty, but which is not liable to punishment. So among some people fornication is, in this sense, lawful; and among the Egyptians and Lacedæmonians, theft also. So the right of dividing the debtor's body was lawful by the Twelve Tables. But this use of the word licere, to be lawful, is less proper, as Cicero says: it is not lawful to commit a sin, but we are deceived by an erroneous phrase; for we say that is lawful which is allowed by law: and in another place he says to the judges, you are not to consider what is lawful or allowed, but what is decent and proper. So to kings who are irresponsible everything is said to be lawful. But Claudian rightly says to a king, You are not to consider what is lawful, but what becomes you. And so Musonius.

3 And in this sense, what is lawful is often opposed to what is right (oportet), as in Seneca repeatedly. So Ammianus, Pliny, Cicero. And Cicero opposes fas esse, what is right by nature, to licere, what is allowed by law. And Quintilian opposes jura, lawful rights, to justice.

III. In this latter sense, it is lawful to harm an enemy, both in per son and in property; and this, not only for him who is making a just war and who harms the enemy in the way which is allowed by Natural Law, as we have explained; but on both sides, and without distinction: so that he cannot for this reason be punished, if caught in another territory, as a homicide or a thief, nor can war be made on him on the ground of such an act. So Sallust says, All being lawful to the victor by the laws of war.

IV. The reason of this rule among nations was this: that for other nations to offer to pronounce on the right of war between two peoples, would be dangerous for those who interfered, and who might thus be involved in a war belonging to others; as the Massilians said, in the case of Cæsar and Pompey, that they had neither jurisdiction nor power to discern which side was most in the right. And in the next place, it can scarcely be known by external indications, in a just war, what is the proper limit of self-defense, of recovery of property, or of exaction of punishment; so that it is by all means better to leave this to the conscience of the belligerents, than to appeal to extraneous decision. So the Achæans in their oration to the Senate*, ask, In what manner are things done by the laws of war to be called under discussion? Besides this effect of this allowable character of acts, there is another, as regards ownership, of which we shall have to speak hereafter.

V. 1 This right of doing harm to the enemy, extends, first to their persons, as we have many testimonies in Greek authors. He is pure who slays enemies, according to the Greek proverb in Euripides.

Not to the Senate, but to Appius the legate in the Achæan Council. J. B.