The Rights of War and Peace: In Three Volumes

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

1246 u c h a p t e r i i i u Of a just or solemn War, according to the Right of Nations, and of its Denunciation. I. 1. 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 arises, nor, as elsewhere, from the great Actions 1 done in it, but from some peculiar Effects of Right. But what manner of War this is, is best understood by the Definition which the Roman Lawyers give of an Enemy. Pomponius says, 2 They are Enemies, who publickly denounce War against us, or we against them; the rest are but Pirates, or Robbers. So says Ulpian, 3 They are Enemies against whom the People of Rome have publickly declared War, or they against the Romans; the rest are called pilfering Thieves, or Robbers. Wherefore he that is taken by Robbers, is not a Slave to those that take him, neither does he want the Right of Postliminy. But one taken by the Enemy, suppose by the Germans, or Parthians, is the Enemies Slave, and may recover his former Condition by the Right of PostI . (1) To which the Epithet Just is sometimes applied: Thus a Fight is said to be Just in Opposition to some slight Skirmish: Qui intentiore cura suos, quasi ad justum praelium , paucis adhortatus, &c. Quint. Curt. Lib. III. Cap. XIII. Num. 8. SeePitiscus, upon this Passage, and Albericus Gentilis, De Jure Belli, Lib. I. Cap. II. p. 20, 21. 2. Hostes hi sunt, &c. Digest, Lib. L. Tit. XVI. De verborum significatione, Leg. XCVIII. 3. Hostes sunt, quibus bellum publice Pop. Romanus, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. XXIV. We find Examples of Persons taken by Robbers in the Poenulus of Plautus and the Eunuchus of Terence. This was also the Fate of Eumaeus, as he relates it himself in the Odyssey of Homer, Lib. XV.(Ver. 402. & seqq.) Grotius. I. That a solemn War by the Right of Nations, is to be between divers People. a B. 1. ch. 3. of a just war and its denunciation 1247 liminy. And Paulus the Lawyer says, They that are taken 4 by Pirates, or Robbers, continue free. To which we may add that of Ulpian, 5 In civil Dissentions, tho’ by them the State be often wounded, yet the Ruin of the State is not intended; they that embrace either Party, are not such Enemies as they who have the Right of taking Prisoners, and of Postliminy; therefore they who are taken and sold, and afterwards recover their Liberty, have no Occasion to petition the Prince for their Freedom, having never left it. 2. This only is to be observed, that under the Example of the People of Rome, whosoever has sovereign Power in a State is to be comprehended . He is an Enemy 6 (saysCicero)WhohastheGovernmentof publick Affairs, a publick Council, a Treasury, the Right of commanding the People by Vertue of their Consent and Union, the Power of making Peace andWar, when necessary. II. 1. Neither does 1 a State immediately cease to be a State, tho’ it commits some Acts of Injustice, even by publick Deliberation; noris aCompany of Pirates and Robbers to be reputed a State, tho’ perhapstheymay observe some kind of Equity among themselves, 2 without which no Body can long subsist. For these latter are 3 associated on the account of their Crimes; but the other, tho’ sometimes not wholly guiltless, do associate for thepeaceable Enjoymentof theirownRights,andtodoRight to Foreigners, if not in all Things according to the Lawof Nature,which 4. A piratis, aut Latronibus, capti, liberi permanent. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlim. &c. Leg. XIX. § 2. Pompey declared those who had beentaken by the Pirates to be free. Appian. Bell. Mithridatic. (p. 237. Edit. H. Steph.) SeeHerrera , Vol. II. Grotius. 5. In civilibus dissensionibus, &c. Ibid. Leg. XXI. § 1. 6.He insinuatesthisinspeakingof theantientWarsof theRomans, inOpposition to the civil War of Mark Anthony: Ac maioribus quidem vestris, &c. Orat. Philip. IV. Cap. VI. II. (1) See Pufendorf, Lib. VIII. Chap. VI.§ 5. Of theLawof NatureandNations. 2. Consult what our Author says in his preliminary Discourse, § 24. 3. Procopius describes them thus: A Multitude assembled and united not according to the Laws, but by their Crimes. Vandalic. Lib. II. (Cap. XV.) Grotius. These Words are in the Oration of Belisarius, upon the Revolt of the Roman Soldiers in Africa. II. A Distinction...