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The Rights of War and Peace

In Three Volumes

Hugo Grotius

Publication Year: 2012

Since the nineteenth century, Hugo Grotius’s Rights of War and Peace has been the classic work in modern international law, laying the foundation for a universal code of law. However, in the seventeeth century and during the Enlightenment, it was considered a major defense of the rights of states and private persons to use their power to secure themselves and their property.Book I examines the question of whether any war is just and who may lawfully make war. The causes of war; the implications of contracts, oaths, and promises; and the moral strictures of punishments are the subjects of Book II. The third book discusses what is lawful in war, the various kinds of peace and agreements given, and the treatment and ransoming of prisoners.The Liberty Fund edition is based on the classic English text of 1738, with extensive commentary by Jean  Barbeyrac. It also includes the Prolegomena to the first edition, a document never before translated into English.Hugo Grotius is one of the most important thinkers in the early-modern period. A great humanistic polymath—lawyer and legal theorist, diplomat and political philosopher, ecumenical activist and theologian—his work was seminal for modern natural law and influenced the moral, political, legal, and theological thought of the Enlightenment, from Hobbes, Pufendorf, and Locke to Rousseau and Kant, as well as America’s Founding leaders.Richard Tuck is a Fellow of Jesus College, Cambridge, and Professor of Government at Harvard University.Knud Haakonssen is Professor of Intellectual History and Director of the Centre for Intellectual History at the University of Sussex, England.

Published by: Liberty Fund

Title Page, Copyright

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Table of Contents of the Set

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pp. vii-viii

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Introduction

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pp. ix-xxxiv

In the famous dedication of his Discourse on the Origin of Inequality to the Republic of Geneva, Jean-Jacques Rousseau drew a vivid picture of his father sitting at his watchmaker’s bench. “I see him still, living by the work of his hands, and feeding his soul on the sublimest truths. ...

A Note on the Text

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pp. xxxv-xxxviii

Acknowledgments

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pp. xxxix-xl

The Rights of War and Peace, Book I

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pp. 1-2

Title Page

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pp. 3-4

Table of Contents

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pp. 5-58

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The Life of Hugo Grotius

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pp. 59-70

To look into the Manners of Antiquity, and recover the Memory of preceding Ages, is an Entertainment of the highest Pleasure and Advantage to the Mind, it establishes very lasting Impressions of Virtue in us, enlarges the Soul, and moves our Emulation to follow and excel the leading Characters before us; ...

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Dedication

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pp. 71-74

This Book presumes, most illustrious Prince, to intitle itself to Your great Name, from a Confidence, not of itself, or its Author, but of the Subject Matter of it, which is Justice; a Virtue in so distinguishing a Manner Yours, that by it, both from Your own Merits, and the general Consent of Mankind, ...

The Preliminary Discourse

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pp. 75-132

Book I

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Chapter I. What War is, and what Right is

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pp. 133-179

All 1 the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People 2 that form no Community, or those that are Members of different Nations, whether 3 private Persons, or Kings, or other Powers ...

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Chapter II. Whether 'tis ever Lawful to make War

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pp. 180-239

Having viewed the Sources of Right, let us proceed to the first and most general Question, which is, Whether any War be Just, or, Whether ’tis ever Lawful to make War? <24> ...

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Chapter III. The Division of War into publick and private; together with an Explication of the Supreme Power

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pp. 240-335

The most general and most necessary Division of War is this, that one War is private, another publick, and another mixed; that is a publick War, which is made on each Side by the Authority of the 1 Civil Power. Private War is that which is made between private Persons, without publick Authority. ...

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Chapter IV. Of a War made by Subjects against their Superiors

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pp. 336-383

Private Men may certainly make War against private Men, as a Traveller against a Robber, and Sovereign Princes against Sovereign Princes, as David against the King of the Ammonites; and so may private Men against Princes, but not their own, as Abraham did against the King of Babylon, and other neighbouring Princes; ...

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Chapter V. Who may lawfully make War

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pp. 384-388

As in other Things, so also in moral Actions, there are wont to be three Efficient Causes, Principals, Assistants, and Instruments. The principal Efficient Cause in aWar, is generally the Person interested. In a private War a private Person; in a publick, the Civil Power, especially the Supreme. ...

Book II Title Page, Copyright

Table of Contents of the Set

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pp. vii-x

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Chapter I. Of the Causes of War; and first of the Defense of Persons and Goods

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pp. 389-419

Let us now proceed to the Causes of War, I mean such as are properly said to justify it; 1 for there are some Motives of Advantage, sometimes different from just Occasions, that determine us to take up Arms. Polybius 2 accurately distinguishes these two Sorts of Causes, the one from the other,

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Chapter II. Of Things which belong in common to all Men

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pp. 420-453

It follows now, that in treating of those Causes that justify a War, we speak of Injuries already done; and first of those that regard what is properly ours. There are some Things which are ours by vertue of a Right common to all Men; and others which are so by a particular Right. ...

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Chapter III. Of the original Acquisition of Things; where also is treated of the Sea and Rivers

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pp. 454-482

The particular Right we have to a Thing, is either by 1 original or derivative Acquisition. Original Acquisition, when Mankind were so few in Number, as to be able to assemble together in one Place, might be made by first Occupancy and by Division, as we observed before. ...

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Chapter IV. Of a Thing presumed to be quitted, and of the Right of Possession that follows; and how such a Possession differs from Usucaption and Prescription

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pp. 483-507

A Great Difficulty 1 arises here, concerning the Right of Prescription. For whereas this Right receives its Being from the Civil Law, (Time, as such, having no Power to produce any Thing, for nothing is done by Time, tho’ every Thing be done in Time) in Vasquez’s Opinion, it cannot take Place between two free Nations, ...

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Chapter V. Of the Original Acquisition of a Right over Persons; where also it treated of the Right of Parents: Of Marriages: Of Societies: Of the Right over Subjects: Over Slaves

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pp. 508-565

We have a Right, not only over Things, but over Persons too, and this Right is 1 originally derived from Generation, from Consent, from some Crime. By Generation, 2 Parents, both Father and Mother, acquire a Right over their Children; but if their Commands should 3 run counter,

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Chapter VI. Of an Acquisition (Possession of Purchase) derived from a Man's own Deed; where also of the Alienation of a Government, and of the Things and Revenues that belong to that Government

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pp. 566-578

A Thing becomes ours from a 1 derivative Acquisition, either by the Deed of another, or by Vertue of some Law. Since the Establishment of Property, 2 Men, who are 3 Masters of their own Goods, have by the Law of Nature a Power of disposing of, or transferring, all or any Part of their Effects to other Persons; ...

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Chapter VII. Of an Acquisition derived to one by Vertue of some Law; where also of succeeding to the Effects and Estate of a Man who dies without a Will

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pp. 579-633

Now that derivative 1 Acquisition, or Alienation, which is owing to some Law, is either from the Law of Nature, or the voluntary Law of Nations, or from the Civil Law. We are not treating of Civil Law here, for that would be an endless Task, neither are the most considerable Disputes in War to be determined by it: ...

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Chapter VIII. Of Such Properties as are commonly called Acquisitions by the Right of Nations

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pp. 634-663

The Order of our Subject has now brought us to treat of that Acquisition or Property, which is, by the Law of Nations, distinct from the Law of Nature, which we have above called the Voluntary Law of Nations. Such <248> is that Acquisition which is obtained by the Right of War; ...

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Chapter IX. When Jurisdiction and Property Cease

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pp. 664-684

How the Right of Property, and that of Sovereignty, are originally acquired, and how they may be transferred, has been sufficiently declared; let us now see how they may entirely 1 cease. And first, that they may cease, by being abandoned and deserted, has been by the Way already shewn; ...

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Chapter X. Of the Obligation that arises from Property

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pp. 685-698

Having declared what Right we have over Things or Persons, as much as serves to our Purpose, let us now see what Obligation to us does from thence arise. Now this Obligation arises either from 1 Things now in Being (un-<273>der the Name of Things, I shall comprehend the Right we have over Persons too, so far as we can receive any Benefit from it) ...

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Chapter XI. Of Promises

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pp. 699-728

We now come in the Order of our Subject 1 to treat of Obligations arising from Promises; where we presently meet Franciscus Connanus, an eminent Scholar, opposing us. He maintains this Opinion, that those Agreements which include no Contract 2 are not binding, ...

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Chapter XII. Of Contracts

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pp. 729-767

Those that are single, are either gratuitous, and done for nothing, or permutatory, and by Way of Exchange: 1 Such as are gratuitous, are either merely so, or with some mutual Obligation. Those that are merely gratuitous, are either done out of hand, or respect the future Time. ...

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Chapter XIII. Of an Oath

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pp. 768-801

In every Nation, and in every Age, an 1 Oath has always been of the greatest Weight and Consideration in Promises, Agreements, and Contracts. For, as Sophocles says in his Hippodamia, ...

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Chapter XIV. Of the Promises, Contracts, and Oaths of those who have the Sovereign Power

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pp. 802-816

The Promises, Contracts, and Oaths of Kings, and of others who have a like Sovereign Power, have some particular Difficulties and Questions, concerning the Power they have in Regard to the Validity of their own Acts, the Right which their Subjects acquire thereby, and the Obligation they impose on their Successors. ...

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Chapter XV. Of publick Treaties, as well those that are made by the Sovereign himself, as those that are concluded without his Order

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pp. 817-847

Ulpian has divided all Conventions into publick or private. 1 The publick he explains, not as some think, by a Definition, but by Examples. The first, Such as are made in Time of Peace. The second, when Generals agree some Things between themselves. By publick Agreements then he understands those which cannot be made, ...

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Chapter XVI. Of Interpretation, or the Way of explaining the Sense of a Promise or Convention

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pp. 848-883

If we respect the Promiser only, he is obliged to perform freely, what he was willing to be obliged to. When you promise, says Cicero, 1 we must consider rather what you mean than what you say But because the inward Acts and Motions of the Mind are not in themselves discernible, and there would be no Obligation at all by Promises, ...

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Chapter XVII. Of the Damage done by an Injury, and of the Obligation thence arising

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pp. 884-897

We have already shewn, that a Man may have a Right to a Thing three several ways, either by Contract, by an Injury done him, or by Law. Of Contracts we have fully treated. Let us now come to that Right, which arises by the Law of Nature from an Injury received. ...

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Chapter XVIII. Of the Rights of Embassies

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pp. 898-924

We have hitherto treated of those Rights that belong to us by the Law of Nature, adding some Few that arise from the voluntary Law of Nations, as it is an Addition to the Law of Nature. Let us now come to consider, what Obligations that Law of Nations which we call voluntary, doth of itself lay us under. ...

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Chapter XIX. Of the Right of Burial

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pp. 925-948

From the same arbitrary Law of Nations arises the Right of Burying the Bodies of the Dead. 1 Dion Chrysostom, among those Customswhich he opposes to written Laws, places this of Burial next to the Rights of Embassadors. 2 And Seneca the Father, 3 among those Laws that are unwritten, which yet are more certain than any that are written, ...

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Chapter XX. Of Punishments

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pp. 949-1052

When we undertook, above, to assign the Causes of War, we laid down, that Injuries done might be considered in a twofold Respect, either as they may be repaired or punished. Of the former we have already fully treated. We come now to the latter, that of Punishment; 1 ...

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Chapter XXI. Of the Communication of Punishments

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pp. 1053-1095

Our Enquiry concerning the Communication of Punishments, relates either to those 1 who are Accomplices in the Crime, or to others who are not so. Accomplices in a Crime are not said so properly to be punished for other Mens Faults, as 2 their own. ...

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Chapter XXII. Of the unjust Causes of War

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pp. 1096-1114

In a beginning to treat of the Causes of War, we divided them into 1 justifying Reasons and Motives. Polybius, the first Author of the Distinction, calls the one Προφάσεις as being usually such as are openly assigned for the War, (Livy b sometimes terms them the Title of the War) ...

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Chapter XXIII. Of the dubious Causes of War

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pp. 1115-1132

What Aristotle says, holds very true, that we cannot expect 1 the same Degrees of Evidence, in Moral, as in Mathematical Sciences, because Mathematicians consider 2 Forms abstractedly from Matter, and Forms themselves are generally such 3 as will not admit of any Mean, as between strait and crooked there is nothing of a Medium to be found; ...

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Chapter XXIV. Exhortations not to engage in a War rashly, tho' for just Reasons

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pp. 1133-1150

Tho’ it be somewhat foreign to the Matter in Hand, which is designed only to treat and discourse of the Right of War, to explain what other Virtues, distinct from Justice, require or direct with respect to War; yet by the way we must obviate a certain Mistake, lest any one should imagine, ...

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Chapter XXV. Of the Causes for which War is to be undertaken on the Account of others

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pp. 1151-1166

Above, when we a treated of those who make War, we laid down, and explained, that, according to the Law of Nature, every Man is authorized to maintain, not only his own Right, but also that of another Person’s: And therefore those Reasons that can justify a Man in undertaking a War for himself; ...

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Chapter XXVI. Of the Reasons that justify those who under another's Command engage in War

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pp. 1167-1184

We have already treated of those who are at their own Liberty and Disposal; there are others, who are in Circumstances of Obedience and Submission, such as Sons in Families, Slaves, Subjects, and likewise every 1 individual Member of a State, if compared with the Body of the State of which he is a Member. ...

Book III Title Page, Copyright

Table of Contents of the Set

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pp. vii-x

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Chapter I. Certain General Rules, shewing what, by the Law of Nature, is allowable in War; where also the Author treats of Deceit and Lying

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pp. 1185-1230

We have already seen, not only who may make War, but for what Reasons too they are permitted to engage in it. We are now to enquire 1 what is allowable in War, and how far, and in what Circumstances it is so. And this we must consider, either simply in itself, or with Regard to some antecedent Promise. ...

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Chapter II. How Subjects Goods, by the Law of Nations, are obliged for their Prince's Debts: And of Reprisals

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pp. 1231-1245

Let us now come to those Rights 1 which the Law of Nations allows us, which partly belong to every War, partly to some particular Kinds of War only. Let us begin with the first. By the bare Law of Nature no Man is bound by the Fact of another, but he that inherits his Goods. 2 ...

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Chapter III. Of a just or solemn War, according to the Right of Nations, and of its Denunciation

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pp. 1246-1269

We have a already mentioned, that according to the Opinion of the best Authors, a War is often said to be just, not from the Cause whence it <550> arises, nor, as elsewhere, from the great Actions 1 done in it, but from some peculiar Effects of Right. ...

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Chapter IV. The Right of killing Enemies, and exercising other Violence on their Persons, in a solemn War

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pp. 1270-1302

Deriving the Fecial (or Herald) Law from Ancus Marcius, who had borrowed it himself from the Aequicolae, says thus, 2 When Men or Cattle were taken from the Romans by any other Nations, the Pater Patratus (King at Arms) with some other Heralds, whose Office it was also to make Treaties of Alliance, went to the Borders of that Nation, ...

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Chapter V. Of Wasting and Plundering

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pp. 1303-1313

I. Cicero, in the third of his Offices, declares, 1 It is not against the Law of Nature to spoil or plunder him whom it is lawful to kill. No wonder then if the Law of Nations allows to spoil and waste an Enemy’s Lands and Goods, <574> since it permits him to be killed. 2 Polybius tells us in the fifth of his History, ...

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Chapter VI. Of the Right to Things taken in War

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pp. 1314-1359

Besides the Impunity of some Acts allowed to be used against our Enemies, of which we have treated hitherto; there is also another Effect, which 1 by the Law of Nations is proper to a solemn War. And indeed by the Law of Nature those Things may be acquired by a just War, ...

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Chapter VII. Of the Right over Prisoners

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pp. 1360-1373

There is no Man by Nature Slave to another, that is, in his primitive State considered, independently of any human Fact, as I have a said in another Place; in which Sense we may take the Lawyers, when they say that Slavery is 1 against Nature, but it is not repugnant to natural Justice, ...

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Chapter VIII. Of the Jurisdiction that Victors gain over those they conquer.

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pp. 1374-1380

No wonder that he who can bring into Slavery every particular Person of the Enemies Party, that falls into his Hands, (as we have shewn in the preceding Chapter) may 1 also impose a Subjection upon the whole Body, whether it be a State, or part of a State; whether that Subjection be merely Civil, merely despotical or mixt. ...

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Chapter IX. Of the Right of Postliminy

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pp. 1381-1410

As the Lawyers of latter Ages have writ almost nothing reasonably of Things taken from Enemies, so neither have they of the Right of Postliminy. This Subject has been treated of by the old Roman Lawyers somewhat more accu-<612>rately, but oftentimes too confusedly; ...

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Chapter X. Some Advices concerning what is done in an unjust War

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pp. 1411-1419

I must now reflect, and take away from those that make War almost all the Rights, which I may seem to have granted them; which yet in Reality I have not. For when I first undertook to explain this Part of the Law of Nations, I then declared, that many Things are said to be of Right and lawful, ...

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Chapter XI. The Right of Killing in a just War, qualified

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pp. 1420-1456

But Cicero has it better, There are certain Duties to be observed even towards those that have wronged us, 2 for there is a Moderation required in Revenge and Punish-<631>ment. The same Author commends the antient Times of the 3 Romans, when the Ends of their Wars were either mild, or rigorous, merely through Necessity. ...

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Chapter XII. The Right of Wasting, and such other Violences, qualified

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pp. 1457-1474

That one may destroy the Things of another without the Imputation of Injustice, one of these three Things should necessarily go before. Either such a Necessity as may be supposed to have been excepted in the primitive Establishment of Property. As when a Man, purely for his own Safety, ...

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Chapter XIII. The Right over Things taken in War, qualified

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pp. 1475-1480

But the taking away of our Enemies Goods in a just War, is not to be reputed wholly innocent, or clear from the Obligation of Restitution. For 1 if we respect that which is done rightly, it is not really lawful to take, or keep from the Enemy more than may be justly due from him, ...

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Chapter XIV. Moderation in Regard to Prisoners

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pp. 1481-1497

In what Places the taking of Men Prisoners, and making them Slaves, is yet allowed, if we respect internal Justice, it is to be thus limited; that is, it may be so far lawful, till Satisfaction be made for the Debt, either principal, or accessory; unless it should happen, that the Persons taken be guilty of such Crimes as may justly forfeit their Liberty. ...

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Chapter XV. Moderation in obtaining Empire and Sovereignty

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pp. 1498-1511

If there be some Rules of Equity which we cannot dispense with, and some Acts of Humanity which we laudably exercise towards private Persons, tho’ not bound to it in Rigour, we are so much more obliged to observe the former, and it is so much more commendable to practise the latter, ...

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Chapter XVI. Moderation concerning those Things which, by the Law of Nations, have not the Benefit of Postliminy

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pp. 1512-1518

How far Things taken in a just War may be the Captors, I have declared a above, from which are to be deducted, what are recoverable by the Right of Postliminy; for these are to be esteemed as not taken. But Things taken in an unjust War, I have already b said, are to be restored, ...

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Chapter XVII. Of Neuters in War

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pp. 1519-1526

It may seem needless for us to treat of those that are not engaged in the War, when it is manifest that the Right of War cannot affect them; but because, upon Occasion of War, many Things are done against them on Pretence of Necessity, it may be proper here, briefly to repeat what we have already mentioned a before, ...

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Chapter XVIII. Of private Actions in a publick War

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pp. 1527-1532

What we have said hitherto, does most belong either to those who command with an absolute Authority in War, or those who act by Vertue of the Orders they have received from the Sovereign.We are now to see, what may be privately done in War, whether we respect the Law of Nature, of Nations, or the Divine Law. ...

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Chapter XIX. Of Faith between Enemies

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pp. 1533-1550

We have already a said, what, and how much may be lawfully done in War, [[th]]is † either considered simply in itself, or with regard to a foregoing Promise. The first Part being concluded, the other remains to be discussed, which is, concerning Faith (to be kept) between Enemies. ...

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Chapter XX. Of the publick Faith by which War is concluded; where also of Treaties of Peace, of Lots, of Set Combats, of Arbitration, of Surrenders, of Hostages, and of Pawns.

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pp. 1551-1594

All Agreements between Enemies depend upon Faith, either expressed or implied. Faith expressed, is either publick or private. Publick is either of the supreme or subordinate Powers. That of the supreme Powers, either puts an end to the War or is of Force during its Continuance. ...

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Chapter XXI. Of Faith during War, of Truces, of Safe Conduct, and the Ransoming of Prisoners

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pp. 1595-1616

There are some Things that use to be granted mutually by sovereign Princes, in Time of War, which 1 Virgil and 2 Tacitus call Belli Commercia, The Commerce of Wars. 3 Homer, Συνημόσυναι. Such as Truce, Safe-Conducts, Ransom of Prisoners. A Truce is an Agreement, by which, during the War, for a Time we forbear all Acts of Hostility. ...

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Chapter XXII. Of the Faith of Generals and Officers

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pp. 1617-1625

Among publick Agreements Ulpian 1 reckons this as one, When the Generals of each Army agree some Things between themselves. I promised, that after having discoursed on Faith given by Sovereign Powers, to say something of that given by Inferior ones, either between themselves, or unto others; ...

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Chapter XXIII. Of the Faith or Promises of private Persons during the War

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pp. 1626-1637

That Saying of Cicero 1 is well known, Whatsoever any private Person, urged by Necessity, shall promise to the Enemy, even in that very Thing he must keep his Faith. Private here implies, either Soldier or any other Person that does not bear Arms, for Faith is to be kept by all. ...

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Chapter XXV. The Conclusion, with Admonitions to preserve Faith and seek Peace

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pp. 1638-1644

And here I hope I may make an End; not that I have said all that might have been said, but that which hath been said may be enough to lay a Foundation, on which if any other will build a more stately Fabrick, I shall be so far from <736> envying him, that I shall heartily thank him. …

Passages of Scripture

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pp. 1645-1654

Index I

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pp. 1655-1666

Index II

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pp. 1667-1674

Index III and Last

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pp. 1675-1740

Appendix: Prolegomena to the First Edition of De Jure Belli ac Pacis

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pp. 1741-1742

A note on the translation

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pp. 1743-1744

Prolegomena to the First Edition of De Jure Belli ac Pacis

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pp. 1745-1762

Bibliography of Postclassical Works Referred to by Grotius

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pp. 1763-1790

Bibliography of Works referred to in Jean Barbeyrac's Notes

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pp. 1791-1814

Index

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pp. 1815-1988

Production Notes

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E-ISBN-13: 9781614878001
E-ISBN-10: 1614878005
Print-ISBN-13: 9780865974364

Page Count: 2024
Publication Year: 2012

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  • War (International law).
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