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."