TABLE OF REFERENCE, To enable the reader to find in their numerical order, and by the books to which they respectively belong, the several titles of the Institutes, Digests, and Code, quoted in this work. INSTITUTES. De rerum divisione & adquirendo ipsarum dominio. Lib. 2. tit. 1. DIGESTS. The titles in italics are translated into English in the American Law Journal. De adquirendo rerum dominio, lib. 41. tit. 1. captivis & postliminio, lib. 49. tit. 15. distractione pignorum, lib. 20. tit. 5. exercitoriâ actione, lib. 14. tit. 11. (2 Am. Law Journ. 462.) institoriâ actione, lib. 14. tit. 3. jure Fisci, lib. 49. tit. 14. nautico fœnore, lib. 22. tit. 2. (3 Am. Law Journ. 158.) noxalibus actionibus, lib. 9. tit. 4. origine juris, lib. 1. tit. 2. publicanis & vectigalibus, lib. 39. tit. 4. ritu nuptiarum, lib. 23. tit. 2. Locati, conducti, lib. 19. tit. 2. Si quadrupes pauperiem fecisse dicatur, lib. 9. tit. 1. CODE. De legibus, & constitutionibus principum, lib. 1. tit. 14. naufragiis, lib. 11. tit. 5. Ne uxor pro marito, &c. conveniatur, lib. 4. tit. 12. The four works which compose the body of the civil law, to wit: the Institutes, Digests, Code and Novels, are divided into Books, Titles, Laws and Sections or paragraphs, and are generally quoted by the English civilians, by referring to those divisions, as for instance, Dig. l. 1. tit. 4. l. 5. § 7., and sometimes Dig., D., or ff. 1. 4. 5. 7., for Digest, Book 1., Title 4., Law 5., Section, or Paragraph 7. The civilians on the continent of Europe, on the contrary, quote the heading of each title, and then refer only to the numerical subdivisions of law and paragraph; sometimes even, they quote the first words of the law, and refer to the paragraph only by its number. Thus our author, page 41, refers generally to the law non omnium, which is the twentieth law of the third title of the first book of the Digests. The references in this work being all by the heading of the title, and not referring to its number, or to that of the book in which it is contained, the foregoing table is presented to our readers, that they may with greater ease turn to the several titles of the books of the Roman law, which are quoted, or referred to in the course of this work. ON THE LAW OF WAR. CHAPTER I. Of War in general. HEN Cicero said, 1. 1. de Offi. c. 11., that there are two kinds of contests between men, the one by argument, and the other by force, by the latter of these he undoubtedly meant war; though he did not intend, as Grotius would have it,* to give thereby a definition of that state of things. Such a definition would be imperfect, as is clearly that of Albericus Gentilis, who defines war, l. 1. de Jure Bell. c. 2., à just contention of the public force. Both these definitions, although the first and the least perfect is approved of by Grotius, are defective; and the reader will be convinced of it by attending to the following which I have myself attempted, and which, if I mistake not contains all the ingredients which constitute a state of war. WAR, then, is a contest carried on between independent persons, by force, or fraud, for the sake of asserting their rights. Let us now proceed to examine it in detail. I have said that war is a contest. By this word I have not meant to express merely the act of fighting, but that state of things which is called war; for if the thing itself be defined with sufficient accuracy, its incidents will necessarily follow. Thus jurists have defined slavery, not merely the act by which freemen are subjected to the dominion of others, but the very state and condition of servitude. Grotius himself has attended to this distinction in his definition of war, which he borrowed from Cicero. * De Jure B. ac P. l. 1. c. 1. § 2. n. 1. War is also a contest between independent persons. This applies not only to nations, but to individuals not living in a state of society; for both are equally independent. Nor can this war between individuals be called a private war; because the word private can only be used in contra-distinction to the word public, which cannot apply where there exists no society. Wherever men are formed into a social body, war cannot exist between individuals; the use of force between them is not war, but a trespass, cognisable by the municipal law. Thus, if I extort from my debtor the ten pieces which he owes me, I incur the penalty of the Julian law against private force; because beating and wounding do not alone constitute force in the sense of the prohibition, but it applies to every case in which a man obtains even what belongs to him, by any other than legal means. L. 7. ff. ad L. Jul. de vi privatâ. War is a contest by force. I have not said by lawful force, for in my opinion, every force is lawful in war. Thus it is lawful to destroy an enemy, though he be unarmed and defenceless; it is lawful to make use against him of poison, of missile weapons, of firearms, though he may not be provided with any such means of attack or defence; in short, every thing is lawful against an enemy. I know that Grotius* is of a different opinion with regard to the use of poison, and that he distinguishes between the different kinds of missile weapons. I know that Zouch, who hardly ever decides upon any point, is in doubt upon this question. But if we take for our guide nature, that great teacher of the law of nations, we shall find that every thing is lawful against an enemy as such. We make war because we think that our enemy, by the injury that he has done us, has merited the destruction of himself and of all his adherents. As this is the object of our warfare, it is immaterial what means we embrace to accomplish it. A judge will not be called unjust who orders a convicted criminal to be put to death by the sword of the executioner, though he be unarmed and bound with chains; for if L. 3. c. 4. § 15. † 18. + Part 2. § 10. Q. 5 & 6. |