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1527 u c h a p t e r x v i i i u Concerning Things privately done in a publick War. I. 1. What we have said hitherto, does most belong either to those who command with an absolute Authority in War, or those whoactbyVertue 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. Cicero 1 relates in his first Book of Offices, that the Son of Cato the Censor served in the Army under Popilius the General, and in a short Time that Legion was disbanded; yet the young Manoutof amilitaryInclinationstillcontinuingintheArmy, Cato writ to Popilius, if he designed to have him still in the Army, to give him a second Oath; adding the Reason, because the former being discharged he could not lawfully fight with the Enemy. He also records the very Words of Cato out of his Letter to his Son, in which he warns him from engaging in Fight, for it is not lawful, for one that is not a Soldier to fight an Enemy. Plutarch much commends a Chrysantas aSoldier of Cyrus, who drew back his Sword, that he had lifted up to kill his Enemy, upon his hearing the Trumpet sound a Retreat. And Seneca tells us, 2 He is a bad Soldier, who regards not the Signal of a Retreat. 2. But they are mistaken, who think this arises only from the external Right of Nations; for if you barely consider that, as it is lawful for any I. (1) Popilius Imperator tenebat, &c. De Offic. Lib. I. Cap. XI. 2. Tam inutilis animi minister est, quam miles, qui signum receptui negligit. De Ira, Lib. I. Cap. IX. I. Whether it be lawful to hurt a publick Enemy privately explained by the Law of Nature, of Nations and Civil Law. a See Xenophon , Cyr. Inst. 1528 chapter xviii one to seize on his Enemy’s Goods, (as we b said before) so he may also kill his Enemy, for by that Right 3 Enemies are accounted as if they were not real Persons. What Cato therefore adviseth, proceeds from the Roman military Discipline, which had a Law 4 (as Modestinus observes) that he who disobeyed, should be put to Death, tho’ he had had good Success; but he was understood not to have obeyed, who without the General’s Command, fought the Enemy, as appears from the Example of Manlius. For if such a Thing were commonly permitted, the Soldier would abandon his Post of his own Head, or even Licentiousnessmight in Time proceed to such a Length, that the Whole Army or Part of it would rashly engage 5 in dangerous Fights; which was by all Means to be avoided. Therefore Salust describing the Roman Discipline, says, 3. Pro nullis habentur, says our Author, applying here what the Roman Lawyers say of Slaves with regard to civil Rights: Quod adtinet ad jus civile, Servi pro nullis habentur. Digest, Lib. L. Tit. XVII. De diversis Reg. Jur. Leg. XXXII. But this Fiction , which in some manner excludes Slaves from the Number of Men, in order to rank them amongst the Goods of Fortune, is only founded upon the arbitrary Decisions of a particular Legislator, which can have no Place in the present Question. It were better to give this for the Reason of it; that neutral People, from only continuing such, being bound to regard the Acts of Hostility on both Sides, as equally just; it suffices, with regard to them, that he is a Person of one of the Parties, who has killed or plundered his Enemy: They have then no Business to troublethemselves whether he, who has committed such an Act of Hostility, acted or not by the publick Authority. For tho’ we were to suppose a Law of Nations merely arbitrary, such as our Author imagines there is, as this Right would necessarily turn upon Things, of which the common Interest of Nations required the Observation; there would be nothing in this Case that can be referred to it, since it is of no import to Nations, whether private Persons do or do not, act against an Enemy of their own Head, and since the End of the War demands on the contrary, that all those of one Party may take all Occasions to hurt the other. So that the present Question can...

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