bound or constrained for a debt, there is nothing in it repugnant to the law of nature, and by the practice not only of the Greeks, but of other nations, the opposite opinion seems to have been established.

Aristocrates, who was contemporary with Demosthenes had made a motion for a decree, that if any one killed Charidemus, it might be lawful to seize him, wherever he was to be found, and that any one, who attempted to rescue that person, should be deemed an enemy. Demosthenes finds fault with many parts of this decree. For in the first place, Aristocrates had omitted making a proper distinction between murder and a lawful putting to death, the latter of which is an act of justice in the next place, he has said nothing of bringing the person to a regular trial: besides, it was not the persons, among whom the murder had been committed, but those who afterwards received the murderer, that were to be declared enemies. Demosthenes says, that "the regular law prescribes, that if the persons in whose district a murder has been committed, neither punish, nor deliver up the perpetrator of the crime, three of their people shall be liable to be seized. But this decree, allowing the persons in whose district it has been committed to escape with impunity, not even naming THEM, passes sentence upon those, who in conformity to the common laws of humanity have received the fugitive, if they do not deliver him up, which would be a breach of the protection due to a suppliant."

The fourth point, in which he blames Aristocrates, is for having carried matters to the extremities of open and actual war, in a case, where the law only authorized the seizure and detention of particular persons. Of these arguments, the first, the second, and the fourth, are by no means destitute of weight. But the third argument, unless it be confined entirely to the circumstance of accidental death, or that necessarily occasioned by defending one's self, may be regarded more as an oratorical flourish than a just and solid reason. For the law of nations extends the privileges, and character of suppliants to those only, who have left their country on account of misfortune, and not owing to crimes. Indeed if the law of nations made no such distinction, the persons, among whom a crime has been committed, and who may be suspected of having countenanced the deed, and those who barely refuse to punish or deliver

up the guilty fugitive, would be upon an equal footing as to right. So that it was either USAGE, which GRADUALLY introduced the above interpretation of that law, to which Demosthenes appeals, or it was afterwards more EXPRESSLY ESTABLISHED, in order to avoid such cavils. For no one can deny the truth of one of these positions who has attended to the observation of Julius Pollux, that "the seizure and detainder of persons can be enforced, whenever a power cannot obtain the surrender of fugitive murderers, which they demand. In this case the aggrieved power or individual may seize and detain any three of the people belonging to the state, which refuses to make that surrender. »

It is upon the same principle that any power may detain the subjects of another state, in order to procure the release of any subjects of her own, unjustly seized, and imprisoned by that state.

IV. Another method of obtaining redress for any violation of persons, or property is by having recourse to what, in modern language, are called REPRISALS, which the Saxons and Angles denominated WITHERNAM, and to which the French gave the name of LETTErs of Marque, and those were usually obtained from the crown.

V. It is generally understood that recourse may be had to this method of redress not only against a foreign aggressor, but also against a debtor, if justice cannot be obtained in due time: but in NOTORIOUS cases, which admit of no doubt, this right may be enforced even beyond the strict letter of the law. For even in DOUBTFUL matters, the presumption will always be in favour of judges appointed by public authority. For it is unlikely that they should GREATLY, or WANTONLY exceed their power; especially when, if so inclined, they have not the same means of enforcing their decrees against foreigners, as against their fellow subjects. Indeed even in disputes between subjects of the same country, they cannot annul a just debt. Paulus, the Lawyer, says that a REAL DEBTOR, though discharged, owing to some informality or inability of the law to enforce payment, still remains a debtor according to the law of nature.

And when, in consequence of a judicial sentence, a creditor, under pretext of seizing his own property, had taken from a debtor something which did not belong to him though it was in his possession: upon the discharge of the debt, a doubt arising whether the thing should be

restored to the debtor, Scaevola maintained that it certainly ought to be restored.

There is a difference between the two cases. For subjects, AS SUCH, cannot make any violent resistance to the execution of a sentence, which they may not deem satisfactory, nor can they prosecute any right in opposition to the law. FOREIGNERS may use violent means to enforce a right: tho' they are not justified in using such means, while there is any possibility of obtaining redress in a legal, and peaceable manner.

It is on such grounds that reprisals are made upon the persons and property of the subjects, belonging to a power, who refuses to grant redress and reparation for injuries and aggressions. It is a practice not literally enacted by the law of nature, but generally received through custom. It is a practice too of the greatest antiquity: for in the eleventh book of the Iliad, we find Nestor giving an account of the reprisals, which he had made upon the Epeian nation, from whom he took a great number of cattle, as a satisfaction for a prize which his father Neleus had won at the Elian games; and for debts due to many private subjects of the Pylian kingdom. Out of this booty the king having selected his own due, equitably divided the rest among the other creditors.

VI. It has been a received opinion with many nations, that reprisals might be made even upon the LIVES of innocent subjects, owing to the right, which it was supposed that every one had over his own life, and which might be transferred from the individual to the state. A doctrine, which, as it was proved in the first book of this treatise, can never be reconciled either to sound religion or morality. Indeed a person may ACCIDENTALLY, though not INTENTIONALLY be killed by us in attempting to prevent him from violently obstructing us in the prosecution of a lawful right. Yet if such an accidental calamity could be foreseen, the law of charity, setting so pre-eminent a value upon the life of man, would in such a case prescribe the forbearance of our right.

VII. But on this, as well as other points, we must take care not to confound the natural and fundamental law of nations, with the civil and conventional law of particular states.

By the law of nations all the permanent subjects, both natives and settlers, of an offending state or sovereign are liable to suffer reprisals: but the same rule does not bind

those, who are passing through a country, or only residing in it for a time. For such reprisals are a kind of pledges, like public burdens, made answerable for the public debts, from which foreigners, being temporary residents, though owing obedience to the laws, are totally exempt.

In the same manner, Ambassadors, but not those sent from an enemy to our enemies, and their property, are exempt from such conditions by the law of nations. By the CIVIL LAW too of many countries an exception is made in favour of women and children, of men of letters, and those who are travelling for the purposes of trade. But by the law of NATIONS the goods of all are liable to reprisals, as was the case at Athens, respecting the seizure of persons. In many places, by the civil law, the right of making reprisals is obtained of the sovereign, and in others, of the judges.

By the law of nations the property of all captures is devoted to discharge the debt, and defray the expenses incurred, the remainder of which, after due satisfaction obtained, and peace concluded, should be restored. By the civil law the persons interested are summoned to appear, the property is sold by public authority, and the money, accruing from thence, divided among all who are entitled to a share of the same. But these and other points of the same kind are to be learned from civilians, who are conversant in such matters, and particularly from Bartolus, who has written upon reprisals. This subject may be closed with one observation, that will in some measure tend to soften the rigour of this stern, but necessary right, and that observation is, that such as by not discharging a debt, or granting redress, have occasioned reprisals to be made, are bound, in justice and honour, to make good the losses of those, who have thereby suffered.

CHAPTER III.

ON JUST OR SOLEMN WAR ACCORDING TO THE LAW OF NATIONS ON DECLARATIONS OF WAR.

Solemn war, according to the Law of Nations between different states -A people, though engaged in unjust war, 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 Nature, Law of Nations, respecting the same - Declaration, conditional, absolute-Forms of declaration introduced by the civil law-War declared against a Sovereign includes his subjects, and allies-The reason why allies are included - Declarations, why necessary to establish certain effects -Whether actual warfare immediately follows a declaration, considered-Whether the violation of an Ambassador's rights to be a just ground of war.

I. IN THE first book of this treatise it was observed, that according to the best writers, a war is defined to be just, not on account of the CAUSES solely, in which it originates, nor on account of the MAGNITUDE of its objects, but from certain, peculiar, effects of right, with which it is attended.

But to what kind of war such an appellation most duly belongs will be best understood by considering the definition, which the Roman Lawyers have given of a PUBLIC or NATIONAL enemy. "Those, says Pomponius, are PUBLIC and LAWFUL ENEMIES, with whose STATE our own is engaged in war: but enemies of every other description, come under the denomination of pirates and robbers. With that opinion Ulpian entirely accords, making an additional observation, that "if any one be taken by robbers, as he is not a lawful prisoner of war, he cannot claim of his own state the right of postliminium. But if he be taken prisoner by a public enemy of the state, being considered as a prisoner of war, he is entitled by the right of postliminium to be restored to his former condition."

These opinions are supported by that of Paulus, who maintains, that persons captured by pirates still continue free, that is, are not to be considered as prisoners, for whom an exchange may be demanded. So that by the opinion of the Roman Lawyers it is evident, that no war