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 territory—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."