But that in case of RENEWED wars such a declaration is not absolutely necessary, appears from the circumstance of its being made in due form at the nearest garrison, and not PERSONALLY to the offender himself, according to the answer given by the heralds, when they were consulted in the case of Philip of Macedon, and afterwards respecting Antiochus. Whereas a declaration for the FIRST time should be made to the enemy himself. Indeed in the war against Pyrrhus the declaration was made to one of his soldiers, in the Flaminian Circus, where, as Servius observes in his notes on the sixth book of the Aeneid, he was commanded to purchase a piece of ground, as a handle for dispute. A proof also that IN SOME CASES a declaration is superfluous may be taken from the circumstance that war is frequently declared by BOTH SIDES, which was done by the Corcyraeans and Corinthians in the Peloponnesian war, though a declaration by one of the parties would have been sufficient.

VIII. As to the use of the caduceum, or staff with the figure of two snakes twisted around it, which ambassadors carried, when they sued for peace, it was a ceremony peculiar to the GREEKS, and not derived from the GENERAL law of nations. The ROMANS in the same manner had particular customs, such as using vervain in forming alliances, throwing a bloody spear, as a declaration of war, renouncing all former friendship and alliance at the expiration of thirty days, after satisfaction had been demanded and refused, and again throwing another spear. None of these PECULIAR customs ought to be confounded with the GENERAL law of nations. For Arnobius informs us, that in his time many of them had fallen into disuse, and even in the time of Varro some of them were omitted. The third Punic war indeed was not declared till the moment of its actual commencement.

IX. A declaration of war, made against a sovereign, includes not only his own subjects, but all who are likely to become his associates, as thereby they make themselves accessories in the war. And this is what the modern lawyers mean, when they say that, in bidding defiance to a Prince, we bid defiance to all his associates. For they give the name of defiance to a declaration of By which is understood the war carried on with the power against whom it has been declared. Thus upon war being declared against Antiochus, there was no occasion for a separate declaration against the Aetolians,

war.

who had openly joined Antiochus. For, as the heralds in their answer justly observed, the Aetolians had, by that act voluntarily brought war upon themselves.

X. 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 war, a new declaration of war will be necessary. For that nation or king is then to be considered, not as an accessory, but as a principal enemy. And therefore it was with reason said, that the war of Manlius against the Galatians, and that of Caesar against Ariovistus, were not just wars according to the law of nations. For war was made upon them not as accessories, but as principals. So that for this purpose, as the law of nations would have required a declaration, in the same manner the Roman law would have required a new order of the Senate.

For on the motion being made for the war with Antiochus, the question was also put, whether it should not at the same time be made with his adherents. The same

rule also being observed against King Perseus, it must be understood, as including the adherents during all the time that war with those princes continued; and implicating all, who in reality gave them support.

XI. The reason why a declaration is necessary to constitute what is deemed, according to the law of nations, a just war, is not that which some writers assign. For they allege that it is to prevent every appearance of clandestine and treacherous dealing: an openness, which may be dignified with the name of magnanimity, rather than entitled a matter of right. On this point, we are informed that some nations have gone so far, as to settle and make known the very time and place of a general engagement.

But waving all conjecture, a more satisfactory reason may be found in the necessity that it should be known for CERTAIN, that a war is not the PRIVATE undertaking of bold ADVENTURERS, but made and sanctioned by the PUBLIC and SOVEREIGN authority on both sides; so that it is attended with the effects of binding all the subjects of the respective states; and it is accompanied also with other consequences and rights, which do not belong to wars against pirates, and to civil wars.

XII. There is much truth indeed in the observations, which some have made, and which they have produced

examples to confirm, that even in wars of this kind all captures become the lawful prize of the captors.

Yet this is only partially true, and that too, according to the law of nature, and not according to the voluntary law of nations. For the latter only makes provision to secure the rights of nations, as WHOLE communities, and not of those, who, as in civil wars, form but ONE PART of a nation.

The same writers are mistaken too in the supposition that defensive wars require no declaration. For it is no less necessary to shew by way of vindication that it is a defensive war, and at the same time by public declaration to give it the character of a national and lawful war, in order to establish those rights and consequences, that have been already mentioned, and which will hereafter be more fully explained.

XIII. They maintain another position also, which is by no means true, and that is, that a power ought not IMMEDIATELY to follow up a declaration of war with actual hostilities, as Cyrus did to the Armenians, and the Romans to the Carthaginians. For the law of nations requires the intervention of no DEFINITE time between the declaration and the commencement of war.

There may indeed be some cases, where natural justice will render such a delay proper. Thus, for instance, where reparation for injury, or the punishment of aggressors is demanded, it is but reasonable to wait till it can be known, whether the just demand will be complied with or rejected.

XIV. In order to establish the same consequences, a declaration will be equally necessary too, where the rights of Ambassadors have been violated. Yet it will be sufficient for it to be made in the manner, in which it may be done with the greatest safety. As in many other matters, in places which afford no security, satisfaction is demanded by denunciation or summons.

CHAPTER IV.

ON THE RIGHT OF KILLING AN ENEMY IN LAWFUL WAR, AND COMMITTING OTHER ACTS OF HOSTILITY.

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 persons, found within an enemy's territory, objects of hostility-Also all going thither before the war - The subjects of an enemy liable to be seized everywhere, except protected by the laws of a neutral teritory - Case of women and children-Case of prisoners - Of those whose voluntary offer of surrender is rejected - Unconditional surrender- Retaliation - Obstinate defence - Hostages.

I. SERVIUS in his comment on the passage of Virgil, where that poet says that war "will authorise mutual acts of destruction and rapine," in tracing the fecial or herald's law to Ancus Martius, and even beyond him to a still more remote period, remarks that, "if ever the persons or property of subjects, belonging to the Roman state, were seized and carried off by any other nation, the principal Herald, or King at arms went out with the sacred ministers, who presided at the making of solemn treaties, and proceeding to the verge of the territories of the offending nation, declared with a loud voice the cause of the war, and the refusal of that nation either to restore what had been seized, or to deliver up the aggressors to justice. After this he threw a spear to indicate that war and all its consequences were from that moment begun."

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 committed; and they likewise called every kind of restitution a satisfaction.

By this explanation we learn that whenever war is proclaimed between two states or sovereigns, it is accompanied with certain rights or consequences, which do not NECESSARILY belong to war itself. And this is perfectly

conformable to the examples from the Roman Lawyers, which have been before produced.

II. But it will be proper to consider how far the lawfulness, which Virgil speaks of, extends. For the term lawful sometimes implies whatever is just and pious in all respects, although the pursuit of a different course may perhaps be more laudable: according to the expression of St. Paul, who says, "all things are lawful to me, but all things are not expedient." Ulpian is speaking of a seller, who, at the expiration of a certain period, is not answerable for the safety of goods, which a buyer has neglected to take away, says he, will yet think himself bound in EQUITY to preserve them with all imaginable care. On some occasions when it is said, that men may LAWFULLY do a thing, the expression only means that doing such act will not subject them to human and legal penalties, but it by no means indicates that the action is strictly conformable to the rule of religion and morality. Thus among the Lacedaemonians and Egyptians stealing was allowed: an indulgence that by no means took away the GUILT of theft.

Cicero in the fifth of his Tusculan questions, speaking of Cinna, beautifully and justly points out this abuse of the word, LAWFUL. "He seems to me, says he, a wretched man indeed for having done those acts, and for having been in a situation, where they might be thought lawful. It can never be lawful for any man to do wrong: but we fall into a great mistake in the use of that word: for we consider a thing to be lawful, which any one may do with impunity." This is the meaning, in which the term is generally understood, as the same orator, in addressing the judges in behalf of Rabirius Posthumus, observes, "it behoves you to consider, what is becoming your character, and not what the rigour of the law allows you to inflict. For if you consult the full extent of your authority, you may make away with any citizen you please."

In the same manner legislators, as it was proved in a former book of this treatise, are not accountable, in their legislative capacity, to any human tribunal, for the laws, which they make, yet they cannot, in a moral point of view, avail themselves of this transcendent power to enact a thing that is evidently unjust. In this sense we often meet with a distinction made between what is proper or right, and what is lawful. Thus Cicero, in his speech for Milo, makes the LAW OF NATURE the standard of what is