1 The eighth Section is omitted, the greater part of it consisting of verbal criticism upon Aristotle's notions of geometrical and arithmetical justice; a discussion no way conducive to that clearness and simplicity, so necessary to every didactic treatise.—Translator.

2 The law, by its silence, permits those acts, which it does not prohibit. Thus many acts, if they are not evil in themselves, are no offence, till the law has made them such. Of this kind are many acts, such as exporting gold, or importing certain articles of trade; doing certain actions, or following certain callings, without the requisite qualifications, which are made punishable offences by the Statute-Law. Those actions, before the prohibition was enjoined by the law, came under the class of what Grotius calls permissions.

3 By moral necessity is meant nothing more than that the Laws of Nature must always bind us.

4 To explain the meaning of Grotius in this place, recourse must be had to first principles. Thus the law of nature authorizing self-defence in its fullest extent, the laws of nations, which authorize war for the same purpose, cannot be repugnant to it.

5 The Law of England on homicide excusable by self-defence, will throw light on the sentiments of Grotius in this place. "The law requires, that the person who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that, not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood. And though it may be cowardice, in time of war, between two independent nations, to flee from our enemy; yet between two fellow subjects the law countenances no such point of honour; because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves. And this is the doctrine of universal justice, as well as of the municipal law."—Blackstone's Com. vol. 4, chap. 14.

6 The author here alludes to the defilement or uncleanness which the ancients thought was contracted by touching a man, who had killed another, even innocently and lawfully.—Barbeyrac.

7 The remainder of this section is omitted, Grotius himself stating it to be only a repetition and enlargement of his arguments immediately preceding it. (Translator.)

8 Grotius does not vouch for the truth of this assertion, but only quotes the passage to shew there were Christians in the army of Marcus Aurelius.

9 By the Silanian decree of the Senate, it was ordered that if a master happened to be murdered in his own house, all the slaves under the same roof should be put to death; even though no proof appeared of their being concerned in the murder. We have an example of the case in Tacitus. Annal. v. xiv. ch. xlii. The Emperor Adrian softened the rigour of that decree, by ordering that only they should be exposed to the rack, who were near enough to have heard some noise. Spartian, Life of Adrian, ch. xviii.

10 As Grotius has so fully established his argument, it is unnecessary to review his answer to further objections.—(Translator.)

11 As the topics of the third section have been so fully stated in the second chapter, that section has been omitted, and the translation goes on from the second of the original to the fourth. (Translator.)

12 In case of rebellion, the subjects taken in arms, have no right to be treated as prisoners of war, but are liable to punishment as criminals.

13 "Wrongs are divisible into two sorts or species, PRIVATE WRONGS, and PUBLIC WRONGS. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are therefore frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community, and are distinguished by the harsher appellation of crimes and misdemeanors."—Blackst. Com. b. iii. c. i.

14 The translation proceeds from hence to the second book of the original, which seems to follow this part without any material break in the chain of argument: the intermediate sections relating to instances in the Roman Republic, which do not directly apply to the practice of modern governments.—Translator.

15 The tenth section is omitted in the translation; as the subject of Christian forbearance of which it treats, has already been discussed in the preceeding book.—Translator.

16 Sections XIII. XIV. and XV. of the original are omitted in the translation.—Translator.

17 Actus aliquos, which literally signifies certain acts, may be rendered by the term incorporeal rights, which imply the right of ways, dignities, franchises, and many other personal privileges arising out of certain corporeal kinds of property.

18 The words of Judge Blackstone will elucidate the meaning of Grotius in this place. The learned Commentator says, "There are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had: and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition: which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has a right to seise and enjoy them afterwards."

19 The meaning of Grotius in this Section will be more clearly understood by a brief explanation of the nature of Contracts. "Now contracts are of two kinds, either express or implied. Express contracts are openly uttered and avowed at the time of making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes, that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labor deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes, that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz. that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal." Blackst. Com. b. ii. c. 30. p. 442.

20 There are cases in which monopolies, and the exclusive privileges of trading companies are not only allowable but absolutely necessary. "For there are, says Vattel, commercial enterprizes that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of the government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen in different countries, those powerful companies that carry on commerce with the East."—Law of Nat. b. i. c. viii. sect. 97. p. 42.

21 Adam Smith in his Wealth of Nations, speaking of treaties of commerce, observes, that "when a nation binds itself by treaty, either to permit the entry of certain goods from one foreign country which it prohibits from all others, or to exempt the goods of one country from duties to which it subjects those of all others, the country, or at least the merchants and manufacturers of the country, whose commerce is so favoured, must necessarily derive great advantages from the treaty. Those merchants and manufacturers enjoy a sort of monopoly in the country, which is so indulgent to them. That country becomes a market both more extensive and more advantageous for their goods: more extensive, because the goods of other nations being either excluded or subjected to heavier duties, it takes off a great quantity of theirs: more advantageous, because the merchants of the favoured country, enjoying a sort of monopoly there, will often sell their goods for a better price, than if exposed to the free competition of all other nations."—Vol. 2. b. iv. ch. vi.

22 The translation proceeds from the fourth to the ninth Chapter of the Second book of the original. The intermediate chapters, being chiefly a repetition of the author's former arguments, respecting the rights of seas and rivers, and other kinds of dominions; and that relating to the rights of persons, being so fully treated in the first volume of Judge Blackstone's Commentaries, it seemed unnecessary to give them in the present work.—Translator.

23 Section VII of the original is omitted in the translation.—Translator.

24 The following extracts from Blackstone's Com. b. ii. ch. xxx. will elucidate the meaning of our author in this place. "Sale or EXCHANGE is a transmutation of property from one man to another, in consideration of some price or recompense; for there is no sale without a recompence." P. 446.

"Where the vendor HATH in himself the property of the goods sold, he hath the liberty of disposing of them to whom ever he pleases, at any time, and in any manner." Ibid. 446.

"And notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice." Ibid. p. 450.

25 "A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of it is an equal injury."—Blackst. Com. b. iii. ch. ix. sect. 3.

26 All the reasonings of Grotius, on this, and on every other point, are intended to apply not only to the transactions of individuals, but to the conduct and affairs of nations.

27 "The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the REASON and SPIRIT of it, or the cause which moved the legislator to enact it. For when the reason ceases, the law itself ought likewise to cease with it."—Blackst. Introd. Com. ch. 2. p. 16.

28 Sections X. and XI. of the original are omitted in the translation.—Translator.

29 From this simple origin of barter, and exchange of things have arisen all the various transactions of commerce. And what was at first an act of necessity between individuals, has proved an inexhaustible source of wealth and prosperity to nations.

30 For the necessity of Monopolies in certain cases, see the note on the xxi. sect. of the 2nd. chapter of this book.

31 The Dutch in order to secure to themselves the monopoly of the spice-trade have frequently destroyed all the productions of the spice islands beyond what was necessary for their own supply. By the just policy of the laws of England, "combinations among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour, are in many cases severely punished by particular statutes; and, in general, by statute 2 and 3 Edwd. VI. c. 15, with the forfeiture of 10 l., or twenty days imprisonment with an allowance of only bread and water, for the first offence; 20 l. or the pillory for the second; and 40 l. for the third, or else the pillory, loss of one ear, and perpetual infamy. In the same manner, by a constitution of the Emperor Zeno, all monopolies and combinations to keep up the price of merchandise, provisions, or workmanship, were prohibited, upon pain of forfeiture of goods and perpetual banishment."—Blackst. Com. b. iv. c. 12. p. 159.—Also the 39 Geo. III. c. 81, enacted, that every person combining with others to advance their wages, or decrease the quantity of work, or any way to affect or controul those who carried on any manufacture or trade in the conduct and management thereof, might be convicted before one justice of the peace, and might be committed to the common gaol for any time not exceeding three calendar months, or be kept to hard labour in the house of correction for two months.—Christian's notes to Blackstone on the same place.

32 "It is possible that an estate or a house may, during the term of a lease, be so increased or diminished in its value, as to become worth much more, or much less, than the rent agreed to be paid for it. In some of which cases it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: If the alteration might be EXPECTED by the parties, the hirer must take the consequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yield nothing or next to nothing, yet the tenant shall pay his rent; and if they next year produce tenfold the usual profit, no more shall be demanded; because the produce is in its nature precarious, and this variation might be expected."—Paley's, Mor. Phil. vol. 1. p. 155, 156.

33 The following passage from Judge Blackstone will both elucidate the meaning and support the reasoning of our author. "Though money was originally used only for the purposes of exchange, yet the laws of any state may be well justified in permitting it to be turned to the purposes of profit, if the convenience of society (the great end for which money was invented) shall require it. And that the allowance of moderate interest tends greatly to the benefit of the public, especially in a trading country, will appear from that generally acknowledged principle, that commerce cannot subsist without mutual and extensive credit. Unless money therefore can be borrowed, trade cannot be carried on: and if no premium were allowed for the hire of money, few persons would care to lend it; or at least the ease of borrowing at short warning (which is the life of commerce) would be entirely at an end."—B. ii. ch. 30. p. 454, 455.

34 "The Mosaic law indeed prohibited the lending of money upon usury. But this was a political and not a moral precept. It only prohibited the Jews from taking usury of their brethren the Jews, but in express words permitted them to take it of a stranger: which proves that the taking of moderate usury, or a reward for the use, is not an evil in itself, since it was allowed where any but an Israelite was concerned."—Blackst. Com. b. ii. ch. 30. p. 454. The objections made to it by Cicero and others, our author observes, are founded more upon the consequences of usury than upon usury itself. Because it deters men from borrowing. But, on the other hand, if there were no advantage attached to the lending of money, none would be found willing to lend; consequently the benefits arising from a facility of borrowing money to carry on trade would be defeated.

35 "Insurances being contracts, the very essence of which consists in observing the purest good faith and integrity, they are vacated by any the least shadow of fraud or undue concealment; and, on the other hand, being much for the benefit and extension of trade, by distributing the loss or gain among a number of adventurers, they are greatly encouraged and protected both by common law and acts of parliament."—Blackst. Com. b. ii. ch. 30. p. 460.

"The contract of insurance is founded upon the purest principles of morality and abstract justice. Hence it is necessary that the contracting parties should have perfectly equal knowledge or ignorance of every material circumstance respecting the thing insured. If on either side there is any misrepresentation or allegatio falsi, or concealment, or suppressio veri, which would in any degree affect the premium, or the terms of the engagement, the contract is fraudulent and absolutely void."—Christian's note on the same passage.

36 There is a distinction to be observed between the NECESSARY, and the VOLUNTARY law of nations. Vattel defines the NECESSARY law to be "that which is always obligatory on the conscience, and of which a nation ought never to lose sight in the line of conduct she is to pursue in order to fulfil her duty, but when there is a question of examining what she may demand of other states, she must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind."—Prelim. sect. 28.

37 The writer quoted in the preceding note defines that obligation "to be INTERNAL, which binds the conscience, and is deduced from the rules of duty; and that to be EXTERNAL, which is considered relatively to other men, and produces some right between them."—Ibid. sect. 17.

38 A treaty may be more advantageous to one of the contracting parties than to the other, and yet contain nothing unjust. "Frequently a great monarch, wishing to engage a weaker state in his interest, offers her advantageous conditions, promises her gratuitous succours, or greater than he stipulates for himself; but at the same time he claims a superiority of dignity, and requires respect from his ally. It is this last particular which renders THE ALLIANCE UNEQUAL: and to this circumstance we must attentively advert; for with alliances of this nature we are not to confound those in which the parties treat on a footing of equality, though the more powerful of the allies, for particular reasons, gives more than he receives, promises his assistance gratis, without requiring gratuitous assistance in his turn, or promises more considerable succours or even the assistance of all his forces: here the alliance is equal, but the treaty is unequal, unless indeed we may be allowed to say, that, as the party who makes the greater concessions has a greater interest in concluding the treaty, this consideration restores the equality. Thus, at a time when France found herself embarrassed in a momentous war with the house of Austria, and the cardinal de Richelieu wished to humble that formidable power, he, like an able minister, concluded a treaty with Gustavus Adolphus, in which all the advantage appeared to be on the side of Sweden. From a bare consideration of the stipulations of that treaty, it would have been pronounced an unequal one; but the advantages which France derived from it, amply compensated for that inequality."—Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.

39 The nature of oaths, contracts and promises having been so fully discussed in the preceding chapters, the translation proceeds from the thirteenth to the fifteenth chapter of the original, the fourteenth being in a great measure only a repetition of our author's former arguments upon the subject.—Translator.

40 On this subject the opinions of our author, and those of Vattel will reflect light upon each other. From the latter of whom, the following extracts will place the matter in a clear point of view. "If a public person, an ambassador, or a general of an army, exceeding the bounds of his commission, concludes a treaty or a convention without orders from the sovereign or without being authorised to do it by virtue of his office, the treaty is null, as being made without sufficient powers: it cannot become valid without the express or tacit ratification of the sovereign. The express ratification is a written deed by which the sovereign approves the treaty, and engages to observe it. The tacit ratification is implied by certain steps which the sovereign is justly presumed to take only in pursuance of the treaty, and which he could not be supposed to take without considering it as concluded and agreed upon. Thus, on a treaty of peace being signed by public ministers who have even exceeded the orders of their sovereigns, if one of the sovereigns causes troops to pass on the footing of friends through the territories of his reconciled enemy, he tacitly ratifies the treaty of peace. But if, by a reservatory clause of the treaty, the ratification of the sovereign be required—as such reservation is usually understood to imply an express ratification, it is absolutely requisite that the treaty be thus expressly ratified before it can acquire its full force. By the Latin term sponsio, we express an agreement relating to affairs of state, made by a public person, who exceeds the bounds of his commission, and acts without the orders or command of the sovereign. The person who treats for the state in this manner without being commissioned for the purpose, promises of course to use his endeavours for prevailing on the state or sovereign to ratify the articles he has agreed to: otherwise his engagements would be nugatory and illusive. The foundation of this agreement can be no other, on either side, than the hope of such ratification."—Vattel, b. ii. ch. xiv. sect. 208, 209, p. 219. "The general of an army, he proceeds, has indeed by virtue of his commission, a power to enter, as circumstances may require, into a private convention,—a compact relative to himself, to his troops, or to the occurrences of war: but he has no power to conclude a treaty of peace. He may bind himself, and the troops under his command, on all occasions where his functions require that he should have the power of treating; but he cannot bind the state beyond the extent of his commission."—Ibid. sect. 210. p. 220.

41 "The right of postliminium is that, in virtue of which, persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged." Vattel, b. iii. ch. xiv. sect. 204.

42 "Personal creditors are in the Roman law called Chirographarii, because they commonly have some bond or note of hand for the debt. And where there are several such creditors, if the debtor's estate is not sufficient to satisfy them all, each has his share assigned in proportion to the largeness of the debt, without any regard to the time, when it was contracted. But in mortgages it was different, the debt of longest standing was to be first satisfied."—Barbeyrac.

43 When the Roman army had passed under the yoke at Caudium, upon their return, when the matter was referred to the senate, it was said that as the convention was made without the consent of the senate or people, the Roman people were not bound by it, and a proposal was made that those who had signed the treaty should again be given up to the enemy, thus the people would be released from the engagement. This proposal was agreed to, and a decree to that purpose passed.

44 Luctatius had inserted this clause that the agreement should be good and valid, only in case it was approved by the Roman people.—Liv. lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.

45 "In all human affairs, where absolute certainty is not at hand to point out the way, we must take probability for our guide. In most cases it is extremely probable that the parties have expressed themselves conformably to the established usage: and such probability ever affords a strong presumption, which cannot be overruled but by a still stronger presumption to the contrary. Camden, in his history of Queen Elizabeth, gives us a treaty, in which it is expressly said that the treaty shall be precisely understood according to the force and appropriate signification of the terms."—Vattel, b. ii. ch. xvii. sect. 271. On the same subject, Judge Blackstone says, that "words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use."—Introduct. to Com. ch. ii. p. 59.

46 "The word DAY is understood of the NATURAL DAY, or of the time during which the sun affords us his light, and of the CIVIL DAY, or the space of twenty-four hours. When it is used in a convention to point out a space of time, the subject itself manifestly shews that the parties mean the civil day, or the term of twenty-four hours."—Vattel, b. ii. ch. xvii. sect. 280.

47 "It is a fundamental rule of construction, that penal statutes shall be construed strictly, and remedial statutes shall be construed liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes: for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty: or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may frequently raise and solve difficulties contrary to the intention or the legislature, yet no further inconvenience can result, than that the law remains as it was before the statute, and it is more consonant to principles of liberty, that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity. But remedial statutes must be construed according to the spirit: for in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go even beyond that which existed in the minds of those who framed the law."—Christian's Notes on Blackst. Comm. Introd. p. 87.

48 The case of a promise made on the supposition of a posthumous child's dying, instanced by our author in this place, bears so near a resemblance to that of a father's bequeathing his property to another, believing his son to be dead, that it is omitted in this chapter having been already given under the head of erroneous promises in the xi. chapter and 6th section of this book.—(Translator.)

49 "The variety of human transactions cannot be comprised within general rules. Occasional decrees therefore become requisite; which vary with each variation of circumstances, for the measure of what is indefinite must be indefinite itself, like the leaden ruler in the Lesbian architecture, which changes its own shape according to that of the stones to which it is applied. It is manifest, therefore, that equity is a species of justice, and contrasted with another species to which it is preferable. A man of equity is he who deliberately and habitually exercises this virtue; who prefers it in all his dealings to the rigour of justice; and who, even when the law is on his side, will not avail himself of this advantage to treat others injuriously or unhandsomely."—Aristot. Eth. b. v. ch. x.

50 Owing to circumstances there may be a variation in the conduct, and yet no change in the principles of a state. This must frequently happen in the commercial regulations between different countries, who are obliged to vary their means to secure the unity of their end. Or if in a treaty between two nations, it is declared there shall be PERPETUAL amity, and a subsequent declaration of war by one of the parties pronounces such amicable relations to be at an end, here there is no variation in PRINCIPLE but in CIRCUMSTANCES, which render such a dissolution of the amity, that was originally intended to be perpetual, necessary to the welfare and preservation of that power, the sole object of all treaties.

51 To illustrate the nature of GENERAL AND PARTICULAR cases, the following example is taken from the Puffendorf:—"One law forbids us to appear in public with arms on holidays: another law commands us to turn out under arms and repair to our posts, as soon as we hear the sound of the alarm bell. The alarm is rung on a holiday. In such case we must obey the latter of the two laws, which creates an exception to the former."—Jur. Gent, lib. v. c. xii. sect. 23.

52 "The deputies sent to the assembly of the states of a kingdom, or a commonwealth are not public ministers like ambassadors, as they are not sent to foreign powers; but they are public persons, and, in that respect, are possessed of every exemption and immunity, that are necessary to the discharge of their functions."—Vatt. b. iv. ch. vii. sect. 109. Of this nature are the privileges enjoyed by the representatives of the British people, and denominated the PRIVILEGES OF PARLIAMENT.

53 Nothing forms a more striking contrast between ancient and modern war, then the personal animosities, which seemed to operate upon the combatants in the former, and the public and national objects, WITHOUT ANY PERSONAL CONCERN, upon which the latter are undertaken. Peruse any ancient historian, or the battles in Homer and Virgil, WHICH THOUGH FICTIONS, DESCRIBE THE MANNERS OF THE AGE, and you see combatants engaged, on whom the laws of nature and of nations seem to have lost their force. Read the accounts of modern warfare and you find hostilities commenced, not from private animosity, but from some great and national object, in the prosecution of which the feelings of the individuals appointed to conduct them are not the only springs of action.

54 Sections XVI and XVII of the original, relating only to the refutation of certain abstruse opinions, are omitted in the translation.—(Translator.)

55 Section V of the original is omitted in the translation.—Translator.

56 Thus letters of marque and reprisal, by which individuals are enabled to redress their own wrongs, must issue from the sovereign power, otherwise the hostilities of such individuals would be unlawful. So that here the ACTION would be unlawful, that is unjust, unless performed by an AGENT, who had a commission from public authority.

57 The three rules above laid down by our author may be illustrated by the three following propositions.—

In the first place, it cannot be denied, that war, in the ABSTRACT, is an evil, but then it is necessary to consider, whether it is not an evil that must, in many cases, be submitted to in order to avoid still greater calamities.

Secondly, in the prosecution of a war, where the advantages, or evils are doubtful, it is necessary to endeavour after the attainment of new confederacies or alliances, that may compensate for the losses sustained, or may open out new channels of trade and commerce, which may supply the place of those that have been closed by the immediate war.

As an illustration of the third point, we may adduce the conduct of King William, after the British Cabinet that met at Tunbridge Wells, August 28, 1698, represented to him how inadequate the spirit of the nation was to enter into a new war, and to bear additional burdens, concluding, "this is the truth of the fact upon which your Majesty will determine what resolution ought to be taken." His Majesty did determine upon war, as the least of all the evils which faced his people, notwithstanding the APPARENT inadequacy of his means. And "in that great war, says Mr. Burke, carried on against Louis the XIV, for near eighteen years, government spared no pains to satisfy the nation, that though they were to be animated by a desire of glory, glory was not their ultimate object: but that every thing dear to them, in religion, in law, in liberty, every thing, which as freemen, as Englishmen, and as citizens of the great commonwealth of Christendom, they had at heart, was then at stake."—Lett. on Regic Peace, p. 90.

58 Thus when a ship makes an appearance of mounting more guns than she really carries, in order to deter an enemy from attacking her, this may be considered as one of those negative stratagems, or stratagems of dissimulation, to which our author alludes.

59 Besides the NECESSARY law of nations, which is EQUALLY, and at ALL TIMES binding upon ALL states, there is a POSITIVE law of nations, consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law. All of which "proceed from the will of nations,—the VOLUNTARY from their presumed consent, the CONVENTIONAL from an express consent, and the CUSTOMARY from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of POSITIVE LAW OF NATIONS."—Vattel, Prelim. Sect. 27.

60 See b. ii. ch. xxi. sect. 2. of this treatise.

61 See b. ii. ch. xxiii. sect. 7. ibid.

62 But such captures cannot be made without authority from the sovereign.

63 The translation proceeds from the XV. to the XXIII. Section of the original, the intermediate Sections being only a confirmation of the preceding arguments by examples from ancient history.—Translator.

64 Our author here speaks of things taken in battle. For upon the surrender of towns, in almost all articles of capitulation it is stipulated, that the General and other superior officers, and the officers of regiments shall preserve their swords and their private baggage, and the noncommissioned officers and soldiers shall preserve their knapsacks.

65 "The end of such a law is to animate soldiers and privateers to pursue robbers and pirates, by the hopes of possessing things taken even from the subjects of the state."—Barbeyrac.

66 The tenth Chapter chiefly containing remarks that have been interspersed in other parts of the work, is omitted here.—Translator.

67 See b. ii. chap. ii. sect. 9.

68 See b. iii. ch. ii. of this work.

69 The translation proceeds from the XIII. to the XV. Chapter of the original.—Translator.

70 B. ii. ch. xv. sect. 7.

71 "The difficulty of recognising things of this nature, and the endless disputes, which would arise from the prosecution of the owner's claims to them, have been deemed motives of sufficient weight for the establishment of a contrary practice. It is therefore with reason, that moveables or booty are excepted from the right of postliminium, unless retaken from the enemy immediately after his capture of them; in which case the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them."—Vattel b. iii. ch. xiv. sect. 209.

72 B. ii. ch. x. sect. 9.

73 The translation proceeds from the xviith to the xixth chapter of the original.—Translator.

74 Sections VI, VII, VIII, IX and X of the original are omitted in the translation. (Translator.)

75 B. ii. ch. vii. sect. 2.

76 "The necessity of making peace authorises the Sovereign to dispose of the property of individuals; and the eminent dominion gives him a right to do it. Every thing in the political society ought to tend to the good of the community; and since even the powers of the citizens are subject to this rule, their property cannot be excepted. The state could not subsist, or constantly administer the public affairs in the most advantageous manner, if it had not a power to dispose occasionally of all kinds of property."—Vattel, b. iv. ch. ii. sect. 12. ibid. b. i. ch. xx. sect. 244.

77 "Some damages are done deliberately and by way of precaution, as when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a tower, rampart, or any other piece of fortification,—or when his standing corn, or his storehouses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss. But there are other damages, caused by inevitable necessity, as for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents, they are misfortunes, which chance deals out to the proprietors on whom they happen to fall. The sovereign ought indeed to shew an equitable regard for the sufferers, if the situation of his affairs will admit of it: but no action lies against the state for misfortunes of this nature,—for losses, which she has occasioned, not wilfully, but through necessity and mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy." Vat. b. iii. ch. xv. sect. 232.

78 See b. ii. ch. xv. sect. 12.

79 "Because then the condition of the contracting parties being unequal, there is great reason to believe, that he, to whose disadvantage the inequality is, has pretended to engage himself as little as possible: and it was the other's business who was to have the benefit of it, to have the thing explained in as clear a manner as possible."—Barbeyrac.

80 Sections XLII, XLIII, XLIV, & XLV, of the original, relating to decisions by lot and single combat, are omitted in the translation.—Translator.

81 The XXIII Chapter of the Original, on Private Faith in War, is omitted in the translation.—Translator.