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ENQUIRY
INTO THE
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LIBRARY
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MICHIGAN
FOUNDATION AND HISTORY
OF THE
LAW OF NATIONS IN EUROPE,
FROM THE
TIME OF THE GREEKS AND ROMANS,
TO
THE AGE OF GROTIUS.
BY ROBERT WARD,
OF THE INNER TEMPLE, ESQ. BARRISTER AT LAW.
Semina nobis Scientiæ dedit Natura, Scientiam non dedit. SENECAL
IN TWO VOLUMES.
VOL. I.
LONDON:
PRINTED BY A. STRAHAN AND W. WOODFALL,
LAW PRINTERS ΤΟ THE KING'S MOST EXCELLENT MAJESTY,
FOR J. BUTTERWORTH, FLEET-STREET.
*795.
7-8-37
PREFACE.
THE following work was originally
intended to be nothing more than the
preliminary diſcourſe to one much
lefs fpeculative, and of a more con-
fined range.—I had, as well from
tafte, as from views of a private nature,
which it is immaterial to mention,
been led much to the ftudy of the
Law of Nations. I had thrown to-
gether a body of notes upon the
par-
ticular parts of it, which were more
immediately the object of my en-
quiries, and I conceived the defign of
collecting them into a work, which
a 2
would
iv
PREFACE.
would have been called " A Treatife
of Diplomatic Law."
the
The nature of Sovereignty, and the
rights of independent States;
manner in which they were created,
and the mode of their communication
by Ambaffadors; the different forts of
Embaffies, and the confequent di-
vifion of the Repreſentative Cha-
racter into Minifters of the firft and
fecond order; their rights and pri-
vileges, particularly their inviolability;
the rank and pretenfions of the na-
tions of Europe; the nature and
laws of Negotiation and Treaty; the
legal fources of their authority, and
the mode of their interpretation; all
this. I meant to confider.
!
I had
PREFACE.
I
I had collected my materials, and
made my arrangements; the authori-
ties, the facts and the cafes were
ready, and I had nothing to do but
to put them into language.---But,
previous to this, a very important
confideration engaged my attention,
which, though it has moved the en-
quiry of every man that ever came to
the ſtudy of laws, muſt for ever be
intereſting, and has not always been
fatisfactorily diſpoſed of. I mean the
account of that obligation in general,
under which we conceive ourfelves
bound to obey a law, independent
of thoſe reſources which the law
itſelf provides for its own enforce-
ment. I was more particularly called
to this confideration on the fubject
before
4 3
vi
PREFACE.
before me, becaufe the law of which
I was about to treat, having no com-
mon tribunal to execute its decrees,
men were left merely to their con-
fciences to determine whether they
would obey it or not. Upon turning
to the fundamental parts of all the
tréatifes I had perufed, I found my-
felf referred to the Law of Nature for
the real and original fource of all the
obligation in men to obey the Law of
Nations; and this Law of Nature
again, I was told to look for in my
own heart and natural conſcience,
which were to decide for me and all
the world in the fame manner, in al-
moft all cafes.. At the fame time, the
fyftem of the Law of Nations was
neither more nor leſs than a particu-
lar,
PREFACE.
vii
lar, detailed, and ramified fyftem of
morals, in which departure was
made from that great outline, and
thofe general perceptions, conftituting
the Law of Nature, and we were
brought to the minute application of
them to cafes and doctrines peculiar
to particular ſets of people. All this,
notwithſtanding, was ſuppoſed to be
really binding upon all the world,
though it was confeffed that all the
world did not, and would not obey
it. Cafes of nicety even were brought
forward and canvaffed upon general
principles, which all, it was held,
were bound to obferve, and they
were therefore called upon to think
alike of theſe particular cafes, al-
though they were a mere application of
ณ 4.
the
viii
PREFACE,
the general principles, and about that
application, different writers were far
from being agreed,
I own this never fatisfied me; and
when I confidered how difficult it
was for the whole of mankind to arrive
at the fame ideas of moral good, from
the prejudices of education and habit,
in the different ftages of fociety in
which they might be; more particu¬
larly when I recollected the great dif-
ference of opinion there was among
very learned men, of the fame nations
and ages, and who had had the fame
fort of education concerning the Law
of Nature itſelf, I was ftill more stag-
gered in my belief that all the world
were bound to obey the ramified and
definite
PREFACE.
ix
J
definite fcheme of duties called the
Law of Nations.
When I examined into my own be-
lief concerning my obligation to obey
this Law, I found it well fortified, and
fufficiently firm. But it was fo, from
a particular fet of opinions which I
had imbibed from education and the
force of example, confirmed and di-
rected by the authority and precepts
of a religion in which I believed.
Something certainly might be derived
from my own natural propenſities and
feelings but theſe laft were far lefs
diſtinguiſhable than the firft; and,
had they been wholly independent of
them, I found that they perhaps might
not carry me fo far as I certainly was
:
willing
PREFACE.
i
willing to go, under the influence of
thofe other weightier confiderations.
Still lefs, therefore, did I confider,
that other perfons, who had perhaps
been taught by education, example
and religion, to think of their duty
towards their neighbour in a manner
totally different from what was laid
down in our Codes of the Law of
Nations, could be bound to act exactly
in the way preſcribed by thofe codes.
Neither could I imagine that I had
any right to act towards all other
people as if they had broken a law, to
which they had
had never ſubmitted,
which they had never underſtood, or
of which they had probably never
heard. Where we were under the
exprefs commands of the Deity con-
cerning
4
PREFACE.
Xi
cerning them; or where they pro-
feffed to obſerve a Code, fo directly
the oppoſite of ours, as to interfere
with our happineſs and juft rights;
then, indeed, I could conceive we
might act towards them as towards
enemies, whofe difpofition it was, like
beafts, to prey upon us; but even
then I did not perceive the fairneſs of
confidering them as amenable to the
laws we chofe to purfue, or as puniſh-
able for breaches of thofe laws,
It followed, therefore, that, al-
though I myſelf could make out the
obligation of the Law of Nations as
laid down in the European Codes, and
that others of the fame claſs of na-
tions, and the fame religion with my
felf,
xii
PREFACE.
L
felf, could, and were bound to do fo
too; yet that the law was not obli
gatory upon perfons who had never
been called upon to decide upon
its ramifications; who might widely
differ as to its application, and even
as to its general and fundamental
principles. The hiftory of mankind
confirmed to me that there was fuch
a difference in almoft all its extent;
that men had the moſt oppofite opi-
nions of their duties towards one
another, if not in the great outline
and firft principles of thofe duties, yet
moft certainly in the application of
them; and that this was occafioned
by the varieties of religion and the
moral fyftems which governed them,
operated upon alſo by important local
cire
5
PREFACE.
xiii
circumftances which are often of fuch
confequence in their direction.
Under all theſe points, it appeared
to me, that we expected too much
when we contended for the univer-
fality of the duties laid down by the
Codes of Law of Nations; that, how-
ever defirable fuch an univerfality
might be, the whole world were not
ſuſceptible of that intimacy and cloſe-
neſs of union, which many philo-
fophers of high name are willing to
fuppofe; that it falls into different
divifions or fets of nations, connected
together under particular religions,
moral fyftems, and local inftitutions,
to the exclufion of other divifions or
fets of nations; that thefe various
divifions
Siv
PREFACE.
divifions may indeed preferve an in-
timacy among one another, and obey
the fame law; but that they may be
contra-diſtinguiſhed from others who
may have different religions, and moral
fyftems, operated upon by very dif-
ferent local circumftances: in fine,
that what is commonly called the
Law of Nations, falls very far fhort
of univerfality; and that, therefore,
the Law is not the Law of all na-
tions, but only of particular claffes
of them; and thus there
and thus there may be
a different Law of Nations for differ-
ent parts of the globe. Not only this,
but even, in the fame part of the
globe, there may have been very
different forts of Law of Nations,
according as revolutions have taken
place
1
PREFACE.
1
place in the religion, fyftem of mora-
lity, and local inftitutions of the na-
tions which compofe it.
All this was to be proved from
hiſtory, if proved at all. And, if the
Theory was a juft one, as any clafs of
Nations would afford a proof of it, I
ſet myſelf to a very ferious examina-
tion of the hiſtory of the people of
Europe, (as that in which we are
moſt intereſted,) not with the old
view of enquiring into their general
manners and cuſtoms, their politics,
their feats of arms, or their arts; but
with the defign to get at the maxims
which governed their intercourſe to-
gether, at various times, and under
various revolutions in their manners;
and
Avi
PREFACE.
and thefe I refolved to fet forth in
detail, as a fupplement and proof of
the theoretical reafoning which I have
mentioned.
This arrangement, however, as
muſt be evident, took in a fubject fo
vaſt, that to treat of it properly
would far furpafs the bounds of a
mere preliminary difcourſe. At the
fame time it appeared to me to be
fully of as much, or perhaps of more
confequence than the work which
had originally given rife to it; and
as profeffional occupations prevented
me from finiſhing the whole, I re-
folved to abandon my firſt plan alto-
gether, and to confine my attention
to this other ſubject which had thus
grown
PREFACE.
xvi
grown out of it. And well have I
been repaid for the labour it has
coft me; fince my mind has been
minutely occupied by a ſeries of the
moſt important and interefting fub-
jects, of which, before, it had had
but a general idea. For although
very great mafters have gone over
all, or moſt of the ground I have
taken, before me; yet they have
done fo in a very different man-
ner, and with far different objects.
Thus, although the facts I have
brought together in the hiftorical
part of the following pages, have moſt
of them long been known, and many
of them form the materials of very
popular hiſtories; yet the view with
which I came again to their contem-
b
plation,
xviii
PREFACE.
1
plation, made them appear to me in a
new light; and although I had at-
tended to moft of them before, yet I
acquired from them freſh entertain-
ment, becauſe they afforded me freſh
inftruction.
1
The facts of hiſtory indeed lie open
to every man's obſervation; and every
man draws conclufions from them,
according as the bent of his mind,
his profeffional purſuits, or any par-
ticular purpoſe inclines him. In this
reſpect, hiſtory would be valuable,
were it no more than a dry ſeries of
events, brought together with accu-
racy and clearneſs for philofophy to
work upon. This, in fome meaſure,
has been the cafe. The firſt hifto-
ries
PREFACE.
xix
น
ries are ſhort and rude, and apparently
uninſtructive, from the want of pro-
per comments. In proceſs of time,
men have diftinguiſhed themſelves,
and done good to the world, by the
ufe which their obfervation and judge-
ment have made of them, and they
then affume a variety of different and
novel forms. Thus, from the fame
collection of facts, one has drawn a
hiftory of man; another, of the pro-
grefs of fociety; a third, of the ef-
fects of climate; a fourth, of military
atchievements; a fifth, of laws in
general; a fixth, of the laws of a
particular ſtate. But it has never
yet been the fortune of the annals of
the world (at leaſt not within my
knowledge) to produce, from any
b 2
com
"
XX
PREFACE.
commentator, A HISTORY OF THE
LAW OF NATIONS.
In this point of view, hiſtory may
be compared to a vaft and diverfified
country, which gives very different
forts of pleaſure to different travellers,
or to the fame traveller if he vifits it
at different times. One travels to ac-
quire a knowledge of men; another
to ſurvey the political reſources of the
ftate; another with a view to its com-
merce; another for mere pleaſure :
and the fame people, the fame cities,
and the fame inftitutions, will afford
high and varied fatisfaction according
to the ſpirit of mind in which they
are viewed. If the compariſon hold
good, I fhould hope that little apo-
logy
PREFACE.
xxi
logy is neceffary for bringing before
the world, many facts and cafes already
well known to it, but all the confe-
quences of which are, perhaps, not
fo well known. Thus for example,
every one knows that Charlemagne
renewed the Weſtern Empire; that
the Hanfeatic League was a powerful
commercial affociation; that the
Queen of Scots was put to death by
Elizabeth, contrary to juftice; and
that priſoners of war uſed to pay
large fums for their liberty to thoſe
who took them. Yet thofe who have
related all theſe things, were not per-
haps led to confider what relation
they bore to the LAW of NATIONS at
the time when they happened; the
real nature of the Imperial title thus
b 3
ac-
xxii
PREFACE.
acquired by Charlemagne; the quef-
tion of the fovereignty of the Hanfeatic
alliance; the effects, as a precedent,
in point of law, of the cafe of Queen
MARY; nor the rules, public and
private, by which the cuſtom of RAN¬
SOM was governed,
In the relation of any tranfaction,
however, I have ftudiously avoided
all thofe parts of it which did not
appear to me to be directly relevant
to the point immediately before me;
and I have gone from one hiſtory and
one age to another, and from one part
of the fame tranfaction to a different
part of it, as it fuited the enquiry I
was upon, without ftaying to com-
plete any account which I had begun,
when
1
PREFACE.
xxiii
¿
when fuch completion was not ne-
ceſſary for the purpoſe with which I
wrote.
In confidering the effects of certain
great local inſtitutions upon the Law,
fuch as the FEUDAL SYSTEM, the Ec-
CLESIASTICAL ESTABLISHMENTS, the
CRUSADES, or CHIVALRY; I have
not even attempted to give any ac
count of the Inſtitutions themſelves ;
but fuppofing them perfectly well
known to the reader, or referring
him to fuch authors whoſe profeſſed
object was to treat of them; I have
barely ſelected ſuch parts of them as
are connected with my own fubject:
thus, the hiſtory of Fiefs; the par-
ticular duties of vaffal and Lord; the
b
A
account
xxiv
PREFACE.
account of the papal ufurpations over
the Clergy of particular kingdoms ;
the cauſes, or hiftory of the Cru-
fades; the minutia of the military
duties of Knights; the law and cuf-
tom of Tournaments, or the rife and
fall of Chivalry in general: all theſe
I have purpofely avoided, and have
bufied myſelf alone about thoſe parts
of them which bore upon the maxims
concerning the public intercourſe of
nations,
1
It follows, therefore, that thoſe
who come to the perufal of this work
ought, in common juftice to the fub-
ject, to be in poffeffion of much pre-
vious knowledge. It follows alfo, I
hope, that however, obliged I may be
to
PREFACE.
XXV
to the learning and patience of thoſe
who have gone before me, upon
the progrefs of mankind; yet the
manner in which that fubject is now
treated, is not deftitute of novelty.
Upon many of the above-mentioned
points, men of high characters for
learning and fagacity, have dived into
antiquities, and have erected fyftems.
It has been my part to confider how
thoſe ſyſtems operated upon the Law
of Nations; a queftion which they
thought too remote from their fub-
ject, or which they never thought
at all of confidering. Thus Pfeffel,
Montefquieu, St, Palaye, Selden,
and Robertſon, have with great dili-
gence and learning furveyed particu-
lar parts of the hiſtory of Europe, with a
view
xxvi
PREFACE.
"
view to their own particular purpoſe. I
have largely profited by their labours,
and have followed them with great
reſpect through thofe erudite and cri-
tical difquifitions which led to the
fettlement of doubtful points, the
elucidation of which was neceffary
before my own enquiries could even
begin. At the fame time I have by no
means always contented myſelf with
the mere authority of their names; but
have gone over, wherever I had op-
portunities of ſo doing, the original
documents on which they have found-
ed their reaſoning. Much indeed
have I to wish that theſe opportuni-
ties had been greater; but fuch is the
immenſe maſs of their knowledge,
and the extenfive range of their fub-
jects,
PREFACE,
xxvü
jects, that I had neither time, nor ma-
terials, nor abilities, to purſue them
minutely through all the intricacies
which they have unravelled. From
the little, however, which I was
enabled to do myſelf, I gained much.
It imprinted the important mat-
ters contained, more ftrongly on my
mind; it added greatly to my own
ftores; it taught me where to look
for much neceffary learning, and en-
abled me, if fuch prefumption may
be allowed, to gather up fome few
things which had eſcaped their at-
tention. Some of the niceties of
the Feudal Syftem, which might
have been gained from Beaumanoir
and Du Cange, and the entire difcuf
fion concerning the rank and claims
of
xxviii
PREFACE.
of the Emperor, which Robertfon has
wholly paffed by, may probably prove
this,
Thefe obfervations, however, re-
lative to thoſe who have preceded
me, are not to be extended beyond
a fmall part of my fubject. In the
difcuffion of many points I had not
the benefit of their affiftance, and
was left entirely to my own refources,
fuch as they were. Almoft the whole,
for example, of the Hiftory of the Law
of Nations, of the critical chapters
upon the effects of Treaty and Con-
vention, and the Rank and Claims of
the Nations of Europe, were to be
collected alone from a careful at-
tention to a dry feries of early Trea-
2
1
ties,
PREFACE.
xxix
ties, or the compariſon of a number
of infulated facts. I have endea-
voured alfo, all the way through, to
engraft as much new matter as my
own ſtudies could acquire, upon the
maſs which had been gathered toge-
ther by the critics and hiftorians. I
have mentioned; and for this I was
driven to the inſpection of many of
the monks, and of thoſe vaft collec-
tions of laws which do fo much ho-
nour to the patient labour of the an-
tiquaries.
Such then is the view which I have
attempted to take, and fuch the au-
thorities I have fought in the histori-
ral part of the following Treatife. I
will not flatter myfelf by fuppofing
that
་མ
XXX
PREFACE.
that its ſcope is entirely new; but I
am not unwilling to hope, that opi-
nions which have hitherto rather been
hinted than detailed at large, have
here been brought forward under a
more ample and accurate form. For
it has been my beſt endeavour to fix
in their proper place, and to fet in
a broad and clear point of light, opi-
nions upon the facts of hiftory which
are only to be collected by dint of
much reflection, and the frequent
compariſon of things which pafs off
in the general detail, as matters of
little confequence.
Upon the whole, then, the work
which is now prefented to the world,
may be faid to confift of two parts.
62
I
The
PREFACE.
xxxi
The firft is occupied with endea-
vouring to ſettle the conftruction of
the Law of Nations; and above all,.
as moft neceffary to the fabric, what
is its real foundation. In this our
attention is. moſt claimed by an en-
quiry into the obligation of Natural
Law, and the endeavour to diſcover
whether that Law can conduct us,
and the whole world, to think exactly
in the fame way concerning thoſe de-
finite and particular ſchemes of duty
which compoſe the province of mo-
ral philofophy. And in this very
important enquiry, that I may not be
miſtaken, I beg leave here to obſerve,
that I mean not by any means to re-
ject the Law of Nature as forming a
part of the foundation of the Law of
Na-
xxxii
PRÉFACE.
Nations; but fimply to point out,
that while men have been known
to entertain fuch difcordant opi-
nions concerning the ramifications of
that Law, it cannot lead us to that
certainty concerning virtue, which
would oblige all mankind to think of
it exactly in the fame manner: If
this is fo, therefore, that we muſt
look to fomething elſe as the binding
principle of Duty, and that thoſe only
we can expect to think alike, concern-
ing it, who are known to have the
fame opinions concerning the Bind-
ing Principle. I by no means in-
tend to ſay, that into the compofi-
tion of this Binding Principle the Law
of Nature, according to our ideas of it,
does not enter. But I hold that there
may
*
PREFACE.
XXXII
may be others who have alſo their
Binding Principle, for the moral fyf-
tem which they chufe to follow, into
which the Law. of Nature, accord-
ing to their ideas of it, may alſo enter:
and if theſe two ſyſtems ſhould recom~
mend very oppofite things as duty,
the Law of Nature being thus (under
different interpretations) common to
both, we cannot expect an unifor-
mity of opinions, merely becauſe we
chuſe to ſay that they reft upon that
Law.
1
If this therefore be juft, I hold
that there may be ſyſtems of morality
called the Law of Nations, of very
different characters, and that if we
truſt to the Law of Nature alone for
a guide,
C
xxxiv
PREFACE.
a guide, we may be diſappointed in
expecting to find an uniformity of
fentiment in the nations to whom we
may addreſs ourſelves. And hence it
is neceffary not only that we ſhould
have ſomething more fixed and defi-
nite as the foundation of the Law of
Nations, but that we ſhould content
ourfelves with compofing a code for
thofe nations alone, who' think as we
do concerning that foundation.
This fomething more fixed and
definite, I conceive to be RELIGION;
not natural, (for that is nearly as
vague as the Applications of Natural
Law itſelf) but revealed. For however
floating the ideas of mankind may be
concerning natural duty, the precepts
of
PREFACE.
**XV
of fuch a religion muſt at leaſt fu-
perinduce CERTAINTY among thoſe
who believe in it.
Hence therefore it is, in addition to
the Law of Nature, not with a view
to reject it, that I hold religion, and
the moral fyſtem engrafted upon it,
to be the trueft foundation for that
code of morality which we call the
Law of Nations.
I am the more anxious that I
fhould be fo understood, becaufe I
have unfortunately been thought to
mean things very different, by, fome
profeffional friends, in whofe judge-
ment and acquirements I have no in-
confiderable confidence. Upon view-
1
C 2
ing
t
།
xxxvi
PREFACE.
}
ing (before the work was completed,)
the difcuffion contained in the ſecond
chapter, they contended, that al-
though I had ftated the argument
in favour of the uniformity of the Law
of Nature, with fairneſs againſt my-
felf, and although I profeffed to con-
fine my objections folely to the uni-
formity of the application of that Law;
}
yet that my own argument went to
its utter annihilation; and that what-
ever I might think, I had yet made
out Man, independent of Christianity,
to be a creature about whoſe nature
we had no lights at all, and who had
a right to confider his own will and
appetite as his law.
'
Whether
PREFACE.
xxxvii
Whether I have done fo or not;
whether I have not endeavoured cau-
tiouſly to extend my meaning folely
to the application of Natural Law to
certain definite and pofitive duties, the
reader is now to judge; but at any
rate, fhould my mode of treating the
fubject be thought to go to ſo great a
length, I am not forry here to have
an opportunity of giving a key to
the argument, as far as my own in-
tention reſpecting it, is concerned,
In the difcuffion to which I allude,
there were not wanting many perfons
in whofe knowledge I alfo confide,
who differed in toto from thoſe above-
mentioned; and on a fubject which
is of confeffed hardnefs, and has di-
vided the opinions of men far above
c 3
me
xxxviii
PREFACE,
me in every fort of attainment, I can
not but expect much difference of
fentiment upon almoſt every thing
that can be faid of it. But the de-
monſtration of the poffibility to mif-
take my own meaning upon the mat-
ter, makes it defirable for me to have
thus an opportunity of doing juftice
to myſelf. At the fame time it is
right to mention, that the objections
that were actually made, though op-
pofed, as I obferved, by others, in-
duced me to make a little, and but a
little alteration in the chapter, after
it was printed. It is confined folely
to the endeavour to tie down the
meaning of the argument, fo as that
it cannot now, I believe, be miſun-
derſtood.
I
With
PREFACE.
xxxix
With reſpect to the poſitions them-
felves, I can have nothing here to add.
They have for ever divided the opi-
nions of mankind; and I pretend
not therefore to the power of fhaking
the fentiments of men who may have
confidered, and made up their minds
upon the ſubject. All I hope from
theſe, is the acknowledgment that I
have ſtated the argument in favour of
uniformity with perfpicuity and fair-
nefs.
Of the anſwers to that argu-
ment, thoſe to whom the fubject may
be new, will now judge for them-
felves.
The ſecond chapter having endea-
voured to deſtroy the idea of unifor-
mity and certainty in the opinions
€ 4
con-
xF
PREFACE.
cerning the application of Natural
,
Law to the duties of human life; I
proceed in the third to enquire what
it is that will produce greater cer-
tainty, at leaſt among particular claffes
of nations; and having fhewn it to
be the religious and moral ſyſtems of
thofe nations, I reft the foundation
of their Law upon thoſe religious and
moral fyftems. I afterwards endea-
vour to prove, that CHRISTIANITY is
the only certain foundation for that
code which is obferved by Chriſtian,
in other words, by European nations,
Theſe three chapters are therefore
to be taken together, before we can
Complete the account of the foun-
dation and conftruction of the Law
of
PREFACE.
xli
The fourth
of Nations in Europe.
chapter is a mere ramification of the
argument in the other three, which
goes to prove that the Law of Na-
tions is not to be confidered as the
Law of the World, but only of par-
ticular claffes of Nations, united toge-
ther by fimilar religious and moral ſyſ-
tems, and influenced by particular
local inftitutions. The fifth is an at-
tempt to point out how different
claſſes of nations may be diftinguifhed:
and with this finiſhes what may be con-
fidered as the firſt part of the enquiry.
Of the fecond we have already
faid much. It is needlefs to add that
it compriſes the hiſtorical part of the
work, and is to be confidered as the
necef-
xlii
PREFACE.
neceffary confequence and proof of
the firft. In this I have begun as
early as any certain documents would
permit me, nor will any reader per-
haps be wiſhful to go deeper into
the antiquities of Europe than the
commencement of the Empire of the
Greeks and Romans. Dr. Falconer
Romans.
will excufe me for having prefumed
to differ from him in the endeavour
to account for the oppofition of the
maxims concerning their treatment of
priſoners, which were obſerved by
thofe nations. The fubject was not
before him except collaterally; but
I neither wiſh, nor mean to challenge
his attention to a part of my en-
quiries, on which I have to confefs
that I have not ufed much labour.
The
PREFACE.
xliii
The account of the Scandinavian
Law of Nations, is one of the ſtrongeſt
proofs of our theory. The effect of
their military religion, if I may ſo
call it, upon their duties towards their
neighbours, was palpable and violent;
the regularity and order of the world
were by them annihilated; and from
the time of their eſtabliſhment upon
the ruins of the Roman Empire, the
hiſtory of the Law may be almoſt faid
to re-commence. It will be need-
leſs to point out to the reader the
great uſe which in this part of my
work I have made of the Northern
Antiquities compiled by M. Mallet;
whofe felections are not more inftruc-
tive as a picture of the mind of man,
than they are pregnant with genius
as beautiful poems.
!
In
xliv
PREFACE.
In the courſe of this Hiftorical part
of the Enquiry, I have, I fear, pur-
fued but little method. Wherever I
have found events of the fame kind
crowding after one another in a per-
petual ſtream, I have followed them
in a mere plain relation; nor have I
aimed at farther order in the recital,
than to endeavour to clafs facts of the
fame character together. Where, how-
ever, I have found a period in which
new and ſtriking changes in the law
preſent themſelves to notice, and the
conduct of nations proceeds upon prin-
ciples unknown before; I have then
topped the current of the hiftory,
and digreffed into a critical enquiry
concerning them. Thus the eighth,
ninth, and tenth chapters, are a mere
feries
5
-
"
PREFACE.
xlv.
}
feries of events; the twelfth, thir-
teenth, fourteenth, fifteenth, and
fixteenth, form fo many critical dif-
quifitions concerning the influence
of certain particular points, which
gave a new character to the maxims
of Europe. The feventeenth Chap-
ter refumes the thread of the hiſtory
chronologically, with this new cha-
racter accounted for, (as far as it lay
within my ability to account for it,)
and continues it to the feventeenth
century, beyond which I meant not
to extend it.
Why I have fixed upon this period
as the cloſe of the Treatiſe, is to be
explained, partly by the confidera-
tion that the law has from that time
been
xlvi
PREFACE.
been nearly ſtationary; but chiefly
becauſe it was the age of GROtius,
to whoſe Treatife little can be added,
and from whom on any point it
would be almoft in vain to differ.
Before his time the true principles of
the Law of Nations were fcarcely
known. He broke ground, as it
were, for a new cultivation; but he
did it with ſuch ability, that the
plans which he traced, and the
method which he introduced have
fcarcely been altered, and remain
to this day the proofs of a ſkill which
was confummate.
By his exertions the law was new
modelled, and the reafons for our
duty as practifed at this day, were
either
PREFACE.
xlvii
either abfolutely ftarted for the firſt
time, or marfhalled in better order
than they had ever yet been before.
Beyond the Treatife therefore DE
JURE BELLI ET PACIS, it was fcarcely
neceffary to go, except to mention
the few others that have attained
to the honour of conftituting, in
conjunction with it, the codes of the
duties of nations as obferved at pre-
fent. The ftate of the law as a
ſcience, immediately previous to the
publication of this incomparable
work; a very flight account of its
author, and its progrefs, together
with the reaſons which gave birth
to the works of PUFFENDORF and
VATTEL, finally cloſe the preſent
Enquiry.
From
xlviii
PREFACE.
From this account therefore of the
following Treatiſe, it will be feen
that it pretends not to lay down
what the law now is, but merely
endeavours to point out what it has
been. It may be faid to be the
hiſtory of former opinions, and does
not therefore affume any thing like
a legiſlative tone. I fhall be too
happy if, humble as the defign con-
feffedly is, it may be deemed to have
derived the fmalleft merit from the
manner of its execution; and I fhall
be more than paid, if it ever arrives
at the rank of being confidered as
an elementary book, for thoſe who
come new to the ftudy of the fub-
ject.
I have
PREFACE.
xlix
I have a little, and a very little to
add concerning the execution of the
work. The reader will no doubt
obferve that I have not been ſparing
in quotations, both in the body of
the Treatife, and in the Notes. I
am aware myſelf, how this inter-
rupts the attention, and particularly
how it interferes with uniformity by
the neceffary change of ftyle! But
in an enquiry of this kind it was
perhaps unavoidable.
Many parts
of it are purely critical, and there-
fore argumentative; and in thefe
cafes we know how little an author's
word can, or ought to be taken. I
mean not to ſay that he would wil-
fully declare what he does not be-
lieve, or any thing of which he does
d
not
PREFACE.
not think himſelf certain; but fuch
is the conftitution of our natures,
that we are liable to be led away
by a favourite ſyſtem, and often to
be deceived by a particular bent of
mind. Where this therefore is pof-
fible, it becomes the abfolute, the
bounden duty of the author, to ſet
before his reader the fources of his
information; and, if he argues from
cafes or authorities, to ftate them in
the very fame fimplicity and ampli-
tude, under which they appeared to
him. This has often feemed fo necef-
fary to various writers, that they
have generally fubjoined at the end
of their works, Appendices, or Col-
lections of what they call Proofs and
Illuftrations, which thoſe who read
for
PREFACE.
li
for mere amuſement, have as ge-
But as I pro-
nerally neglected.
feſs not to write for thoſe who read
for mere amuſement, I have had no
fcruple in interweaving thefe proofs
and illuſtrations fo cloſely with the
body of the work, that the one is
made to depend upon the other for
its very connection and uniformity.
And I have chofen this mode the
rather, becauſe, as I pretend to no
attractions of arrangement or ftyle, I
am fenfible that the merit (if any) of
the following pages, muft depend
fimply upon the faithfulneſs and ac-
curacy with which authorities are
quoted. I am therefore not deterred
by the fear, (fo common, I have ob-
ferved, with many writers) of inter-
d 2
rupting
1
F
PREFACE.
rupting the courfe of the narrative,
or of diverting the reader's attention.
I know not indeed if I am right, but
I have long thought that the art of
bringing plain and authentic docu-
ments into a clear point of view, fo
as to affirm or deny a thing, or
to prove that it cannot be either af-
firmed or denied, is the great merit,
of hiftorical or of argumentative
writing. Too great an attention to
the decorations of language, may often
lead us far away from this true point.
It may pleaſe, but without the other
it cannot fill the mind; it often leads
to error, and is at beſt but meretricious.
This therefore is another object to
which I have ſhaped my exertions;
and, whatever may be my opinions
con-
PREFACE.
lili
concerning a point of doctrine, or a
particular tranfaction, if I may be
thought to have ſtated them with
clearneſs, and fupported them with
fufficient authorities, it is all the
praiſe I can expect, fince it is all to
which I have aſpired.
In the inveſtigation of certain mat-
ters, I have ventured to quit the
beaten path, and to differ from
authorities whofe deferved reputa-
tion would overwhelm me, did I not
feel well fupported by illuftrious auxi-
liaries. Had I therefore nothing but
myſelf to oppoſe to them, I fhould not
have dared to have fallied forth
from obfcurity. But being thus fup-
ported, I have without the wifh,
1
d3
and
liv
PREFACE.
3
and at the fame time without the
dread of provoking controverfy, at-
tempted to ſet forth the grounds for
my opinions. What I allude to, are,
amongſt others, the queftions con-
cerning the difference of treatment
experienced by Greek and Roman
priſoners; the privilege of private
war in the antient Barons; the Sove-
reignty of the Hanfeatic League; the
nature of the Imperial Dignity; the
exemption of Ambaffadors from the
jurifdiction of the criminal Courts
of Law in England; and the cafe of
Queen Mary of Scotland! It is with
very great diffidence that a young
profeffor of the fcience of law, can
pretend to withold his affent on
theſe points from whatever his fu-
ņ
periours
PREFACE.
Iv
periours have afferted before him.
Why he has done fo, he has endea-
voured with all his ability to explain,
and the public will judge, I hope,
with their uſual candour,
Throughout the whole I have to
lament the total want of affiftance
from men of experience and autho-
rity. The work which is now pre-
fented to the world, is in fact the
mere lucubration of a private perfon,
left entirely to himſelf to collect his
materials, to fpeculate, and to de-
cide. At the fame time, the fole
reafon for this perhaps, was his fear
of trefpaffing upon the time of ſuch
men, when it might be more pro-
fitably employed for themſelves and
d
₫ 4
for
i
Ivi
PREFACE.
for their country: Since however irk-
ſome it muſt always be to intrude
our works upon others for correction,
the well-known liberality of the
learned profeffions deprives the in-
truſion of the greater part of its
terrors.
One thing more before I have
done. In the courfe of the follow-
ing pages, there will be found fome
few allufions to the late tranfactions
of the French Nation. In all that I
have faid concerning them, I claim
to be confidered as a man arguing
without prejudice, partiality, or re-
fentment. I have not gone out of
my way either to meet, or to avoid
the fubject; and on all occafions
wherein
عم
PREFACE.
Ivii
wherein I mention them, I profefs
to have taken them up fimply as the
beft illuftrations I could find for the
argument I might have in hand.
And, as in one place I particularly
obferve, all that I have faid of them,
may be ſo ſaid, when we are in pro-
found peace with them, or at fome
future time, when the names of
France and England, their mutual
rivalry, their hatred, or their con-
tempt, will be only known in the
relations of Hiſtory. At the fame
time it is in fairneſs to be remarked,
that the conduct of this nation is
now fomewhat mended, and that the
points moſt complained of were the
effects of the influence of a mercilefs.
tyrant, or of dark minded ruffians
who
Iviii
PREFACE.
who have already, moſt of them, met
their reward.
And now I will releafe both the
reader and myſelf, from a difcuffion,
which I feel to be growing but too
long. The hopes and anxieties of a
young author committing himſelf for
the firſt time to the public, whoſe
praiſe or whofe cenfure, he has not
hitherto been even in the way to
court or to fear; will be my excuſe
if I have trefpaffed too much in this
prefatory diſcourſe. I cannot conclude
without obferving, that whatever
may be the fate of the main defign;
whether it be received with favour,
or rejected with contempt, I have
this found confolation; that my in-
tention
PREFACE.
lix
tention has been to do good to my
fellows in that province for which by
inclination or ſtudy I am beft fitted,
To endeavour after this is the duty
of all mankind, and if the work fails,
the glory of the attempt may perhaps
alleviate the diſgrace of the fall.
Inner Temple,
March 20th, 1795-
}
A
ALPHA-
ALPHABETICAL TABLE OF THE
PRINCIPAL MATTERS.
7. fignifies, that the matter referred to, is contained in a note.
ABUSSAC, K. of Morocco, Treaty of feveral European
States with, ii. 531, 2.
ADAM OF BREMEN, his defcription of the effects of Chrifti-
anity in Denmark. ii. 11, 12.
ADOPTION of Knights and Sovereigns by other Knights of
Sovereigns, ii. 188. See Chivalry.
ADOPTION of Sovereigns, alienation of dominions by, ii. 263.
ADRIAN IV. (Pope) the oath taken by him at the coronation
of the Emperor Barbaroffa, i. 276.
ADULTERY, Common among Savage Nations, i. 81,2. z.
ALARIC, his refpect for the Chriftian Religion, i. 230,
ALBANY, Cardinal of, his interference in favour of the pri-
foners of the Duke of Anjou on the Capture of Mont-
pelier, ii. 52-54
ALBERICUS Gentilis, fuppofed the Roman Civil Law to be
the Law of Nations, ii. 608. Deficiency of his book, 613-
ALBOIN, Prince of the Lombards, good faith of Turifund
towards, i. 233-
ALEXANDER (Pope) his mediatory Letter to prevent War
between France and England, ii. 45.
AMBASSADORS, diftinguishing characters of, i. 360, 1-ii. 545.
-Rights of, vindicated by the Romans, i. 188, g.
Infecure under the European Law of Nations, from the 11th
to the 15th Century, i. 280-286-becoming Prifoners of
War on the death of their Sovereigns, i. 285.
Of Darius, their ill treatment by the Greeks explained, i.
176.
Of the Spartans and Corinthians, murdered by the Athe-
nians, i, 176: See ii. 496.
Of the French and Spaniards, continued contests between,
for precedence, ii. 394, 454-462. See, Nations of Eu
rope, rank and claims of.
Chriſtian, how capricioufly ill treated by the Ottomans,
Ma 474—477, 497•
4
AM-
Ixii
ALPHABETICAL TABLE OF
AMBASSADORS,
Refident, or in Ordinary, a peculiar feature of the Eu
ropean Law of Nations-ii. 477. (See Lieger)-Reafon
and Origin of fuch Embaffies in Europe. ii. 478-483-did
not apply to the Antients, ii. 479-481-By whom firſt
fent and entertained, ii. 483-5, n.-Not of Natural Right,
ii. 483, n.-inconveniences of, ii. 485.
Extraordinary, cuſtom of fending, as old as Society itſelf,
and therefore is almoſt a Natural Right, ii. 477.
Their inviolability univerfal in principle, ii. 477, 8. 486.
492, 4-7-exceptions among the Turks, 497. See, In-
violability of Ambaſſadors.
Punishable by their own Sovereigns, to whom they are
fent back; and who muft difavow their proceedings, or
become open enemies, ii. 515-519, 523, &c.
No Inſtance of their being tried by the Laws of the
Country to which they are fent, ii. 521.
How puniſhable, in atrocious and dangerous cafes, by
the Nation to which they are fent, ii. 546-556-always
by way of ſelf-defence, not by regular trial, ii. 547-In-
ftanced in the Cafe of Gyllenburg, the Swediſh Am-
bafador to England, in 1717; ii. 548-550-What ſhall
conftitute the neceffity which may authoriſe the reftraint,
diſmiſſal, or even death of Ambaffadors, a dangerous,
difficult and chimerical queftion; ii. 550-2.
Their Suite, whether privileged in criminal cafes, ii. 552-6-
Inftances in which this privilege was waved, ii. 5535
or denied, ii. 553, 4-conclufions from, ii. 554, 6. See
Inviolability.
Their privilege of being covered in the prefence of Sove-
reigns, ii. 563, 602, n.
Of Obedience, to the Pope, ii. 383, 4.
Of the Pope, termed Nuncios, ii. 384.
AMBROSE St. Archbishop of Milan, his Reproof to Theo-
dofius, ii. 41-43.
AMERICA, Conqueft and fettlement of, by the Spaniards,
under the Pope's Grant, ii. 111, 114-by Engliſh Mo-
narchs, ii. 114-116.
ANALYSIS,
THE PRINCIPAL MATTERS.
lxiii
ANALYSIS, a mode of Philofophizing, applicable as well to
Morals as to Phyficks, i. 66.
ANCUS MARTIUS, his Inftitution of the Roman Ceremonies
in declaring War, i. 184.
ANDREGHAM Marfhal, Cafe of his Capture and Releaſe on
Parole by Edward the Black Prince, ii. 181, 2.
ANJOU, Duke of, his Behaviour to his Hoftages, i. 289, 290,
his cruelty on the Capture of Montpelier, ii. 52, 54.
ANTIOCH, Prince of; See Saladin.
ÁPANAGES, dangerous to Monarchies, i. 364, 5.
APPEAL to Neutral Nations by Powers at Variance; a strong
feature of improvement in the Law of Nations, i. 323.
-Inſtance of, in the difpute between the Kings of Ar-
ragon and Navarre in 1176; i. 323-in the conteſt be-
tween Henry III. and his Barons, i. 324-other inftances,
i. 325-The moſt regular inftance, that of Edward III.
againſt John K. of France, i. 326-of Edward III. to the
Pope, againſt Philip of Valois, ii. 49-Probable Origin of
this Appeal to Neutral Nations, ii. 50.
To Superior Lords as a Common Court, or High Tribunal,
in cafes of Delinquency by an inferior Feudatary, confe-
quences of, i. 377-388-Inſtances of in, John King of
England, i. 377-379-Henry III. King of England, i. 379.
380-Edward I. i. 380-Edward II. i. 381 - Edward III,
i. 382-Edward the Black Prince, i. 383-Charles the Bold
i. 383, 4-Charles the Bad K. of Navarre, i. 384-John
Baliol, K. of Scotland, i. 385-other inftances, i. 386, 7.
ARRIERE-Fiefs, creation and effect of, i. 368.
ATHEISM, the profeffion of men even in civilized Societies,
i. 108, 112.
ATHEIST bound by the Law of Nature, i. 53, 94.
ATHENIANS, inconfiftency of their character, i. 178, 180.
ATTILA the fcourge of God, how juftly fo called, i. 215.
AutoxsÇaλ01, Biſhops formerly fo ftiled, and why, ii. 80.
Avroxpalap, title of the Emperours of the Eaft, ii. 392.
S
AUXILIARY
1
lxiv
ALPHABETICAL TABLE OF
AUXILIARY Treaties, their rife and effect, ii. 291-5-Prin
ciples of, ii, 291, 2-exemplified, in the Treaty between
France and England in 1214, as to Sicily and Germany,
ii. 292, 3-in the Treaty of Oleron, ii. 293-of Bretigny,
ii. 293, 4.
B
BALANCE of Power, part of the Law of Nations in Europe
only, i. 147, 8-Origin of, i. 369.
BARBAROSSA, Frederick (Emperour) See Adrian IV.-Doge
of Venice.
BARBARY States, Treaties with, i. 165, 8: ii. 331, 2.
BARONS, Feudal, their right of private War, i. 347, 8-
See Private War - How far to be conſidered as Sovereigns,
i.
1. 393—5.
BARONIUS, his Apology for the Rudeness of Pope Celeftine
III. to the Emperour Henry VII. ii. 92.
BARRIER, erected between Sovereigns meeting to treat with
each other, i. 279, 280.
BARTHOLOMEW, St. See Maffacre.
Raçius, a title affumed by the Eastern Emperours, ii. 396.
BEATRICE, Sifter of Conftance, Queen of Arragon; Cafe of
her Deliverance from Captivity, i. 255.
BEAUVAIS, Biſhop of, anecdote of, i. 365.
BECKETT Thomas à, his military pomp, i. 366.
BEQUEST of Dominions by their Sovereigns, ii. 263, 4.
BEURNONVILLE, Commander of Soiffons, the injuftice of hig
Puniſhment, i. 261-Interceded for by many French
Officers, his brothers in arms, ii. 204.
BIRGER (K. of Sweden) a Law of his againſt Slavery, ii. 31.
BISHOPS, their power co-equal, before the ufurpation of the
Pope, ii. 79, 80 - ftiled therefore Auloxe@ano, ii. 80 - their
power in the primitive church, ii. 84.
BLACKSTONE, his opinion as to the Common Law of Eng-
land relative to Ambaſſadors, ii. 502, 3: 543, ".
BOHEMIA, King of, his peculiar fituation confidered, i
416-419.
BONIFACE,
THE PRINCIPAL MATTERS.
Ixv
BONIFACE VIII. (Pope) his open ufurpation of temporal
Power, ii. 93 his conteft with Philip IV. of France, ii.
94-107-how ignominiouſly treated by Colonna and No-
garet, agents of Philip, ii. 105-his death, ii. 106.
BROTHERHOOD of God; what, and its eſtabliſhment, ii.
24-6.
BROTHERS in Arms; See Chivalry; Fraternity of Arms.
BURLEMAQUI, an Opinion of his on the Law of Nations.
conteſted, i. 153.
C.
CALVERLEY Hugh de, Brother in Arms to Bertrand du
Gueſcelin, ii. 203, 4. See Chivalry.
CANNIBALS, i. 81, n. 85.
CAPTIVES in War, flavery of, i. 10 - Slaughter of, by the
Greeks, i. 179, 180. See Slavery; Slaves; Priſoners of
War.
CARDINALS, their claim of precedency before Kings, ii.
385, 6.
CARNEADES, his reafoning on Morality, i. 72.
CASTLES, dangerous and vaft number of, in England and
France, between the 11th and 15th Centuries, i. 344, n.
CATHOLICS. See Religion (Chriſtian)
CATO the Younger, caſe of his acting as a Soldier, i. 187.
CELESTINE III. (Pope) his infolence to the Emperour
Henry VII. ii. 92.
CELTS the parent nation of the Gauls and Britons, i. 202-
their contempt of life, and defire of a violent death,
i. 203, 5, 7-their notions of Paradiſe, i. 206.
CHALLENGES between Kings and Generals. See Chivalry.
CHARLEMAGNE, his regret at the progrefs of the Danes and
Normans, i. 221-his cruelty to his Saxon Prifoners,
juſtified by the then Law of Nations, i. 224-his Policy in
colonizing with Priſoners of War, i. 225-the improve-
ments in the Law of Europe, owing to his comprehenſive
genius, i. 321-his Reſtriction of Private War, i. 346-
under
}
lxvi
ALPHABETICAL TABLE OF
under the precepts of the Chriftian Religion, ii. 15-
prefided at the Council of Frankfort in 794, ii. 58-almoft
Emperour of Europe, ii. 81. See Emperour of Germany.
CHARLES of Anjou, his cruelty to his Prifoners, i. 246-his-
unjuft treatment of Conraddin, i. 256. See Conraddin.
CHARLES the Bold, his imprudence, (according to the ther
Law of Nations,) in putting himſelf in the power of
Lewis XI. i. 277, 8..
4
CHEVALIERS de Reconnoiffance, ii- 206.
CHIEFTAIN, the Principal of a deadly Feud, i. 350, 4.
CHILDREN expofed and inhumanly treated by various Nations
under Natural Law, i. 76, 7: Sacrificed to the Gods, i
84-under Natural Religion, i 104.
}
Crufade of; See Crufade.
CHINESE, why they do not entertain Refident Embaſſies from
other Nations, ii. 481. See n.
CHIVALRY, its effect on the European Law of Nations, i.
330, 5-Cap. 14, ii. 155-230.
Origin of, ii. 155, 8.
The cauſe of confiderable improvements in the Laws of
War, ii. 159, 160, 178. See Poft.
Liberality and Courtefy, its two diftinguishing attributes,
ii. 162-inftances of; in the behaviour of William Rufus,
ii. 162, 3-Earl of Gloucefler towards K. Stephen, ii.
163, 4-K. Stephen himſelf, ii. 164-in not attacking un-
armed enemies, ii. 165-in the general conduct of Ed-
ward III. and the Black Prince, ii. 165-8-in the caſe of
Bertrand du Guefcelin, ii. 167, 8-Carlonnet, ii. 169; 212-
French and English Monarchs, ii. 170, - the Talboto
and Xantrailles, ii. 171-in moderating the Price of Ran-
fom, ii. 172. See Ranfom.
Fidelity, another diftinguishing attribute, ii. 174-a palpable
means of improvement in the Law of Nations, ii. 174-5-
and of War, ii. 178-Breach of, in Knights, how puniſhed
ii. 176, 9. See Knights-The probable Origin of giving
liberty on parole to procure ranfom, ii. 179-Inftances of
in Waler and, Count of St. Pol, ii. 179- Tho. Percy, an
English
5
THE PRINCIPAL MATTERS. lxvii
English Knight, ii. 180 - Du Guefcelin, ii. 180- Such
prifoners could not carry arms during their parole, ii.
180-Inftance; in Charles de Blois, ii. 181- Exception in
Marſhal d'Andregham prifoner to Edward the Black
Prince, ii. 181, 2-See Ranfom; Priſoner; Hoftages.
CHIVALRY,
Extenfion of Friendship, another feature of By Adoption
of Knights or Sovereigns by each other, ii. 188-thefe,
in fact, alliances, ii. 189 - Ceremony of by delivery of
Arms, ii. 189-191 - See i. 233 - other ceremonies, ii.
191.This the origin of Knighthood, ii. 191-Relationſhip
ſuppoſed to arife from Adoption, ii. 191-benevolent
effects of in Adoptions, by the fame perſon, ii. 191-into
the fame order of Knighthood, ii. 192, 3-extended even
to affiftants, in the ceremony, ii. 193, 4-one mode of
adoption by a grant of the fame Coat of Arms, ii. 195-
Inftances; in the Count de Chimay adopted by Fer-
dinand, K. of Aragon, ii. 195-René d'Argenfon; and
the cuſtom of knighting Venetian Ambaſſadors in France
on taking leave, ii. 195-Duke de Richlieu; who was
created a Noble of Genoa, ii. 195-Lord Malmſbury;
permitted to quarter the Arms of the houſes of Bran-
denburg and Orange, ii. 196-Another effect of Adop-
tion, The Fraternity of Arms, ii. 196-of Scythian ori-
ginal, ib. horrid ceremonies of, ii. 198, 9 - milder in
civiliſed and Chriſtian Countries, ii. 198, 9 - Effect of in
amending the Law of Nations, ii. 199, 200-ufed between
Kings and States, ii. 200, I interfered with political
engagements, as in the Cafe of Henry K. of Caftile, ii.
201-but not with the duties owing by Knights to their
Sovereigns, ii. 202 - though it then ſoftened the afperi-
ties of War, ib. inftanced in the cafe of Guefcelin and
Hugh de Calverley, ii. 203, 4-and increaſed hoſpitality
and eſteem, ii. 205-Hence the Chevaliers de Recon-
noiffance, ii. 206.
its effect on the general operations of States,
ii. 206- by introducing Regularity in the declara-
ез
tion
Ixviii
ALPHABETICAL TABLE OF
71.--
·
tion of War, ii. 206, 7.-inftanced in the gallantry of
Walter Manny, ii. 207, 8.-Form of fuch declarations ;
by Letter, as in the Cafe of Charles V. and Edward III.
ii. 208, 9.-or by Heralds, as between Edward IV. and
Lewis XI. ii. 209.-Origin of thefe forms, ii. 209, 210.—
Regulation of, among German Princes by the Golden Bull,
ii. 210, 211.—Magnanimity of the Chiefs in engaging each
other, ii. 212.-In declaring the time and place for engage-
ment between Armies, ii. 213.—Inftanced between Edward
III. and Philip of France, in 1339; ii. 213-in the bat-
tles of Agincourt, Verneuil, and Floddenfield, ii. 214, 5.
and fee between Edward the Black Prince and Henry
K. of Caſtile, in 1367; ii. 215.-Theſe general challenges
arofe from the cuſtom of private duels, ii. 216.—which alſo
produced challenges between Leaders of Armies and Mo-
narchs, in which Kingdoms were fometimes ftaked, ii. 217.
-Inſtances of, by the Emperor Henry IV; Edward III. of
England; Henry V. of England, ii. 217,8.-By Champions;
against Richard II. of England, ii. 218, 9.-Between Peter
of Arragon and Charles of Anjou, in confequence of the
death of Conraddin, ii. 219–222. See Conraddin—on the
fame quarrel between René, Duke of Anjou, and Alphonfo,
K. of Aragon, ii. 223.-See further Duels; Garrifon.
CHRISTIANITY. See Religion (Chriftian)
CHURCH, immunities of, as a Sacred Place, ii. 16-18.-
fighting and killing in, how puniſhable among the Saxons,
ii. 16.
CLERGY, among Chriftians a diftinct body of men; and why,
ii. 33, 4.
CLISSON, Oliver de (Surnamed the Butcher) his conduct
towards certain Hoftages, i. 291 - Inftance of his re-
venge, i. 297-his impriſonment and ranſom, i. 310, 311.
CODES of the Laws of Nations, what attention due to them,
ii. 9.
COKE, his opinion; on the privileges of Ambaffadours under
the Engliſh Law; examined, ii. 533, 4 - on Treaties with
Infidel, ii. 325 - doubted, ii. 326.
COLONNA.
THE PRINCIPAL MATTERS.
Ixix
COLONNA, See Boniface VIII.
COMMERCE, Treaties and Conventions Refpecting, ii. 337
-358.
Utility of pofitive conventions in Regulating, ii.
337, 8-How far it is the duty of a State by the Law of Na-
ture to encourage commerce, ii. 338-340-The Law of Na-
tions on this ſubject, vague and indefinite, ii. 339-Remedied
by poſitive Inſtitutions, ii. 339, 340.
Cauſes why it did not flouriſh in the early ages,
ii. 340, I.
Earlieſt pofitive convention on the ſubject by
Canute, with the Emperor Conrad and Pope John, ii. 341.
Protected by Laws, of the Maritime States
againſt Piracy, ii. 342-of the Swedes, in cafes of Ship-
wreck, ii. 342-of the Danes and Sicilians to allow Sal-
vage, ii. 343-of the Engliſh in favour of Merchants, ii. 344-
of Oleron, ii. 345-Recapitulated, ii. 345-9-Inſtitutions
of Wiſbuy, ii. 349-351-Letter of K. Edward VI. in
1553; ii. 352-5-Regulations of the Flemish States, ii.
355-6-Confequences of the Regularity of theſe Conven-
tions, ii. 356, &c.-in the protection of Merchants on the
breaking out of War, ii. 356-8.
COMMON CAUSE, Treaties to make; their principle and
origin, ii. 315, 6-Inftances of; in 1197, between Engliſh
Kings and Baldwin Count of Flanders, ii. 316, 7-Henry
III. and Duke of Brittany, in 1225, ii. 317-Henry Earl of
Luxenburg and Ferry Duke of Lorrain in 1266, ii. 317.
COMMONWEALTHS. See Republicks.
COMPANIES, Soldiers of Fortune, ii. 299-their origin, in
bands of Mercenary Soldiers, ii. 303-5-their exploits, ii.
305—8-fubfidized, and treated with, by various Sovereigns,
ii. 307, 8-311-under Count Mansfeldt and the Duke of Saxe-
Weimar; the latter fubfidized by Richlieu, ii. 312-314-
COмYNS, Remark on his opinion as to the privileges of
Ambaffadors under the English Law. ii. 502, 534.
CONDOTTIERI, Soldiers of Fortune, ii. 299.
e 3
CON-
"
1xx
ALPHABETICAL TABLE OF
از
CONRADDIN, Heir to the Crown of Sicily, unjustly puniſhed
as a Traitor by Charles Count of Provence, who had con-
quered his Kingdom, i. 256-259-Challenge of Peter of
Arragon to Charles, in confequence, ii. 219 - his cafe,
quoted against the inviolability of Sovereigns out of their
own territories, 300 years afterwards, ii. 582.
CONFEDERATION, Treaties of, their effect on the Law of
Nations in Europe, ii. 272-291-Inftances of, in cafes, of
the German States (See G) ii. 274-The Swifs Cantons, ii,
274-6 (See S.)-the Teutonick Hanfe, ii. 276-290-See
Hanfeatick League.
CONSCIENCE, how far the general and unerring Rule of
Moral Conduct, i. 51, 52, 87-Does not compel alt Man-
kind to the obſervance of the fame ſcheme of morals, i.
88, 91.
CONSENT, neceffary to the Security of Society, in points
doubtful by the Law of Nature, ii. 232.
CONSUL, the Cuftom of eſtabliſhing, arofe from Convention,
ii. 331.
CONVENTIONS, See Treaties -A full inftance of their forming
part of the Law of Nations, ii. 351, 2.
COTTON, Sir Robert, his Reaſoning on the Precedency of
Nations, ii. 369, 370-examined, ii. 370, &c.
COUNCIL of Lyons, the firft; cauſe and effect of, and pro-
ceedings at, ii. 59-71-Members of, ii. 61, z.
the Second; Members of, ii, 72, 3-Pro,
ceedings at, ii. 73.
Trullanean; See T.
COUNCILS, General; their acknowledged power in Chriften-
dom from the XIth to XVth Century, ii. 67, 8, 9, 71,
74, 5-held of right as often as the Jubilees, ii. 73-Their
controul over the Papacy, ii. 75-even to depofition, ii. 77—
103-Not to be affembled without the Pope's Confent, ig
103.
CROQUART, a Soldier of Fortune, i, 311.
CRUSADES
THE PRINCIPAL MATTERS.
1xxi
CRUSADES, Origin of, i. 140-their influence on the Law of
Nations, ii. 130, 1-in producing a new and perpetual
cauſe for War against the enemies of Chriftianity ; and
for peace among its friends, ii. 131-inftanced in the cafe
of Spain, ii. 132-Portugal, ii. 133-Germany and France,
ii. 133, &c.-in the Cruſade againſt Saladin, ii. 134, 5-of
St. Lewis, ii. 135.
Barbarity with which they were conducted, ii. 136–142-
inftanced in the death of the Prince of Antioch, ii.
137, 8-Pieul de Ragonet, ii. 138 - Maffacre of the Pri-
foners at Ptolemais by Richard I. ii. 138, 9-caufe of this
barbarity, ii. 140, 1.
Confidered as meritorious and expiatory in Monarchs, ii.
142, 3-undertaken, by children, ii. 143, 4-by the Paf-
toureux or fhepherds, ii. 144-6-decline of, ii. 146-
150-a mean of getting rid of the banditti of a Nation,
ii. 147-against Hereticks, ii. 150-153; 468-472, 3.
CUSTOм, has a confiderable effect upon Morals, i. 115.
CZAR of Ruſſia, meaning of the Term, ii. 395.
D.
DANES and Normans, principle of their exacting tribute
from other Nations, i. 221.
DANES, their Law as to Salvage, ii. 343.
DEADLY Feud; See Feud.
DEATH, violent defired by the Celts and Scandinavians as
honourable, i. 203, &c.
DEJOTARUS, K. of Galatia, his cafe, how far applicable to
the Question of the inviolability of Sovereigns out of
their own territories, ii. 581.
DIVORCE, power of the Pope as to, ii. 43; 254-6,
DOGE of Venice, origin of his wedding the Adriatic with a
Ring, ii. 110..
DONNER SA FOI, the term made ufe of when a perfon agreed
to remain prifoner of War, i. 304, and n.
DRUIDS, their Cruelty to Prifoners of War, i. 206,
€ 4
DUCANGE,
2
Axxii
ALPHABETICAL TABLE OF
DUCANGE, a pofition of his as to the Right of private war,
i. 345, 6.
DUEL, diftinct from the Right of private war, i. 354, n.
one mode of terminating fuch War; and the reaſon, i.
357, 8. See Chivalry - Oath adminiftered by the War-
dens of the Lifts, ii. 224-Ceremonies on a defeat, ii.
224, 5.-Reward of the Conquerors, ii. 224, 5.
DUMOURIER, a Soldier of Fortune, ii. 314.
E.
ECCLESIASTICAL Eſtabliſhments, their effect on the Law of
Nations, Cap. 13. ii. p. 1, &c. See Religion (Chriſtian).
ECCLESIASTICS, had the right of private war, i. 365, 6, n.
ECSPONDI What, i. 183.
EDWARD III. his Appeal to Chriſtendom against John K. of
France, i. 326. See Appeal. Ceremony of his homage
to Philip of Valois, i. 372.-Appeal of Edward to the
Pope againſt Philip, ii. 49, 50.-See Chivalry.
EDWARD IV. his conference with Lewis XI. at Picquigny,
- i. 279:
EDWARD the Black Prince, his conduct to the Envoys of
Charles V. of France, i. 281. See Chivalry.
EDWARD VI. his famous Letter in favour of Commerce and
Navigation, ii- 352-5-
ELECTIVE Government; See Government.
ELIZABETH Q of England; Head of the Proteftants, ii. 470-
Her Letter to Henry IV. of France on his change of
Religion, ib. n.
EMBASSIES. See Ambafladors.
EMPERORS
Rs and Kings, diſtinction between. See Kings.
their Privilege of prefiding over Councils, ii. 58.
and Popes, their mutual jealoufy of each other,
i. 276, 7. See Pope.
EMPEROR Of Germany, this title inaccurate; is properly
King of Germany and Emperor of the Romans, ii. 386.
His ftile and title, Elected Roman Emperor and King of
Germany, ii. 441. See Kings,
Į
EMPEROR
THE PRINCIPAL MATTERS. lxxiii
EMPEROR Of Germany.
Cauſe of his precedence in Europe inveſtigated and
examined, ii. 396–442.
owing to the accident of his fucceffion to the
Roman Sceptre as fwayed by the Weſtern Emperors;
which took place under Charlemagne in 800; ii. 396.
See 422, 3.
Queſtions arifing thereon, 1. As to the revival of the old
Weſtern Roman Empire-2. What rights were renovated
with the title- and 3. The affinity between the Kingdom
of Germany and the Roman Empire, ii. 396, 7.
1. The Weſtern Empire was revived in the perſon of
Charlemagne, by the Election of the Roman people;
ii. 397, 8; 424, 5.
2. The Rights renovated in the perfon of the Emperors
difputable, ii. 398-arofe from the remarkable union of
dominion in Charlemagne, ii. 399-Idea that the Emperor
was the temporal, as the Pope the fpiritual, head of
Europe, ii. 400-exprefsly acknowledged by fome Na-
tions, and tacitly allowed by others, ii. 400-By the
Engliſh under Henry II. and Richard I. ii. 401.-A&t of
Sovereignty exercifed by the Emperor Sigifmund in
France, ii. 401-one proof of theſe pretenfions the power
of creating Notaries, ii. 402, 3-High Ideas of the Im-
perial Prerogatives, ii. 402-5-afferted with a view to
the enlargement of the Empire, ii. 405-Refifted by Ed-
ward III. of England, ii. 406-and Henry V. ii. 407-
Salutation of his foot by inferior Monarchs, ii. 406.
His power of creating Kings, ii. 408, 9-how far the
inftance of Pruffia applies, ii. 409-414-of Hungary,
ii.
415, 6-generally confined to the Vaffals of the Em-
peror, ii. 415-whether this power ftill remains, ii.
416-420-Cafe of the King of Bohemia confidered, ii.
416-419. See Kings.
3. Real Nature of the Imperial Dignity and its prefent
affinity with Germany, ii. 420-442-the territories of
the
Ixxiv
ALPHABETICAL TABLE OF
the German Monarch not the genuine remains of the old
Roman Empire, ii. 421, &c.-Acceffion of Charlemagne.
to the Imperial dignity, ii. 423-6-who held almoſt all
his poffeffions by different titles, ii, 426-various Kings-
fucceeded to the Empire, till Otho I. or the Great,
brought back the Imperial dignity to the family of
Germany, ii. 427-431.
When and how the Germanick Kingdom and the Roman
Empire were united, ii. 438-by actual Convention between
the Romans under Pope Adrian III with Otho the Great,
ii. 43.8.
The Remarkable Conftitution of the Empire, ii. 439-The
Titles and Sovereignties of the Kingdom of Germany
and the Roman Empire, ftill remain, abſtractedly, diftinct,
ii. 440, I.
EMPIRE, Princes of, by what means they have continued to
be Sovereigns, i. 360.
ENGLAND more regular than other nations in their Laws of
war from the 11th to the 15th Century, i. 266, 7-fo, as
to their private Wars, i. 362-5.
ENSPONDI What, i. 182.
ENTIUS, K. of Sardinia, could not obtain his ranfom; and
why; i. 301.
ESCHEAT of Fiefs to the Supreme Sovereign under the Feudal
Syſtem, i. 383, &c.-Diſputes as to, how decided, i. 389-
Inftances of, in the cafe of, the Earldom of Provence,
i. 390.-Artois and Burgundy, i. 391-Milan, i. 391, 2-
Theſe Efcheats part of the Law of Nations in Europe as
affected by the Feudal Syftem, i. 3935
EUROPE, confidered as a Republick of States, i. 149, 163, 5:
ii. 55-73-change cauſed in this particular by the Lus
theran Reformation, ii. 466, &c.
EXCOMMUNICATION. See Pope.
F.
FAIDE. See Feud (Deadly).
FALCONER
THE PRINCIPAL MATTERS.
1xx v
FALCONER, Dr. his reafoning on the principle of the
Grecian Law of Nations, i. 195, 6-the juftness of it
examined, i. 196, 200.
FEUD (Deadly) its Origin, i. 341-343-who implicated
therein, i. 349, 350, 2, 3.
FEUDAL Syftem, its influence on the Law of Nations in
Europe, i. Cap. XI. p. 329. 332, 3-Cap. XII. i. p. 337-
Its most obvious effects; to multiply the number of
Sovereign States, i. 339-to give a right of interference
to nations with each other, i. 367. See Efcheat; Pri-
vate War.
FIEFS and Arriere-fiefs, creation of, over the Weſtern Coun-
tries, i. 367-8.
Efcheat of; See Efcheat.
FLEURY Abbé, his obfervations on the Bull Ünam Sanctam
examined, ii. 99.
FORFEITURE of the real Sovereign power, can never legally
or conftitutionally happen, ii. 510-514.
FOSTER, his opinion as to the inviolability of Ambaffadors
by the law of England, ii: 540, 1-examined, ii. 542, &c.
FOWKES de Breauté, his reſiſtance to the Civil Power, i. 357.
FRANCE, the parent of many kingdoms, i. 358, n.-Origin of
the States-General there, ii. 97. See French.
FRANCIS I, not the firft Chriftian Sovereign, who entered
into alliance with the Turks, i. 167: ii. 334-his breach
of the Treaty with Charles V. to be attributed to the im-
perfection of the Law of Nations, ii. 599-601.
FRATERNITY of Arms. See Chivalry.
FREDERICK of Auftria, his unjust punishment, i. 257. See
Conraddin.
FREDERICK II. Emperor, and Innocent IV. (Pope) the con-
teſt between them, and the decifion of the firſt Council of
Lyons thereon, ii. 59–71.
FRENCH Republic withdrew from the obfervance of the
Law of Nations; and how; i. 183: ii. 238;-357-opinion
that the bounds of its Empire had been marked out by
Nature,
lxxvi
ALPHABETICAL TABLE OF
Nature, i. 78-its departure from humanity, i. 153, .-in
the decree for the flaughter of priſoners, ii. 172, 3-its
contempt for the Chriſtian Religion, one cauſe of its
crimes, ii. 7, 8. See Genet; Atheism.
FRENCH, their Conftitution of 1791, imperfect; in the at-
tempt to deftroy the inviolability of the Sovereign
power, ii. 511, 12.
G.
GARRISON befieged, relieving; under what circumſtances
confidered as contrary to the Laws of War, between the
11th and the 15th Century, i. 264-defending, puniſhed
by the Conqueror, id.-See Generals; Prifoners.
Origin of agreeing to furrender in cafe affiftance
does not arrive in a certain time, ii. 225, 6-Inſtances of;
in the Siege of Breft in 1373; ii. 226, 9-Derval and
Moiffac; ii. 229-Harfleur in 1415; Bourdeaux in 1451;
ii. 229.
GENERALS of the enemy when taken priſoners, how cruelly
treated by the Romans, i. 189, 190. (See Triumph)-by
the Goths, i. 223, 4-under the European Law of Na-
tions from the 11th to the 15th Century, i. 260—263.
GENET, The French Republican Envoy to America; Caſe
of his Renunciation of the Law of Nations, i. 161.
GENOA, Republic of, not allowed to rank with the Monarchs
of Europe, ii. 449, 450.
GEOGRAPHICAL Situation of Nations, its effect, i. 137, 8;
ii. 316.
GERMANS, Antient, their Predatory expeditions, i. 218.
GERMAN States confederation of, its bafis the Golden Bull,
ii. 274.
GERMANY, Emperor of. See E.
GIBBON, his praiſe of general toleration, how far juft, ii.
9, 10.
GIFT, deed of, alienation of dominions of Sovereigns by;
inſtanced in the cafe of Dauphiny, Arles, Theffalonica,
ii. 263, 4. n.
GOLDEN
THE PRINCIPAL MATTERS.
lxxvii
GOLDEN Bull, Regulations by, as to declaring War among
the German Princes, ii. 210, 11-Bafis of their confedera-
tion, ii. 274.
GOTHS; See Scandinavians.
GOVERNMENT, coeval with the exiſtence of Mankind, i. 21-
Right of the People to overthrow, a pernicious maxim,
i. 86 - Elective, vices of, i. 359.
GREAT Company, a Band of Mercenary Soldiers in the 14th
Century, who rendered themſelves independent, ii.
301-3.
GREEKS, Law of Nations as obferved by, Chap VI. i. P.
171-184-Cauſe of their differing in Principle from the
Romans, as to this Law examined, i. 195–200.
GREGORY VII. (Pope) founder of the Papal Ufurpations,
i. 344; ii. 86, 7 - his proceedings againſt the Emperour
Henry IV. ii. 88-91. See Pope.
GROTIUS, his confutation of Carneades, i. 72 - inconfiftency
of his conduct with his Argument, on the Precedency of
Nations, ii. 372, 3.
Founder of the prefent Regularity of the Law of
Nations, ii. 604-Origin of his Treatife De Jure Belli
& Pacis, ii. 614-616-why fo called, ii. 622-his con-
finement and cauſe thereof, ii. 616, 17-his eſcape by the
affiſtance of his wife, ii. 618 - her Character, ii. 617-
Method he purſued in forming his work, ii. 618, 19-
The Elector Palatine Charles Lewis, the first real patron
of his treatiſe, ii. 620-Oppofition to its tenets, ii. 6z0-
unfuccefsful, ii. 621-Works of Puffendorf and Vattel
founded on his Treatife, ii. 622-5-defects of that Trea-
tife, ii. 622, 3, 4.
GUELDRES Duke of, his good faith, as a Knight, on his
Capture, ii. 186—8.
GUESCELIN, Bertrand du, his furrender as Prifoner of War,
i. 304. .-his Ranfom, i. 306; ii. 166–8; 180; 204-
Capture of his Brother by Thomas of Canterbury during
a truce, i. 312-314; ii. 168 - his Separation with De
Calverley,
Ixxviii
ALPHABETICAL TABLE OF
A
Calverley, his Brother in Arms, ii. 20z, 3. See Chivalry.
Leader of the Companies, ii. 309 - his cruelty to Avig-
non and the Pope, ii. 309.
GUISE, Duke of, his infraction of the Law of Nations, i. 145•
GYLLENBURG, the Swedish Ambaffador in England, his
Cafe, ii. 548, 550.
H.
HAIR, deprivation of, a fign of diſgrace, i 247.
HALE, his opinion as to the privileges of Ambaffadors under
the English Law; examined, ii. 534, 5: 540, 1, 2, &c. 553°
HANSEATIC League, remarks on the nature of, ii. 276, 7-
The Affociation artificial, ii. 277-The members of it
in general not independent, ii. 277-Originally formed
for commercial purpoſes, ii. 277-Cities that compofed
the alliance, ii. 278-fingly dependent, but collectively
independent ii. 279 - extended its views to Sovereign
power, ii. 279-The queſtion whether it was a Society of
Merchants, or a Sovereign power, confidered, ii. 280—
290-how it arofe, ii. 281-if not Sovereign, it exercifed
the rights of Sovereignty, ii. 282-Inftanced in their war
with Denmark in 1361, ii. 282-in the 15th century, ii.
283, 4-in various Acts of Sovereignty, ii. 285-in their
treaties, ii. 286-particularly that of Utrecht in 1474; ii.
287-9-Its annihilation, ii. 290.
HAPPINESS the end of Moral Philofophy, i. 116-119.
HAROLD Duke of Weffex, cafe of his detention in Nor-
mandy, though driven on the coaft by a ſtorm, i. 269.
HASTINGS, Battle of, its confequences to England, i. 333.
HENRY II. of England, his affecting Appeal againſt his Sons
to Pope Alexander, ii. 46.
-III. of England, his acceptance of the Crown of Sicily and
Naples, for his Son, ii. 119, 120.
-IV. Emperour, his conteft with Pope Gregory VII. ii.
88-91, n.
-VI. Emperour, his cruelty to the hoftages in his power, i.
289-Interference of the Pope with, in favour of Tancred
K. of Sicily's daughters, ii. 48.
HENRY
THE PRINCIPAL MATTERS.
lxxix
HENRY VII. Emperor; See Celeſtine III.
HERACLIUS, his regard to the Chriftian Law of Nations and
Religion, i. 231.
HERALDRY originated from Chivalry, ii. 194.
HERALDS, their rights enjoyed under the Law of Nations, i
287-frequently difregarded in the period between the
11th and 15th Century, i. 286-288-the inftruments of
declaring war, ii. 207-9; 214.
College of, among the Romans, i. 189.
HIGH JUSTICE, Power of Life and Death, i. 356.
HIGHLAND CHIEFS, were the laft who poffeffed the right of
Private War in Europe, i. 362.
HILDEBRAND; See Gregory VII.
HOBBES, his Opinion on the State of Nature, i. 72. (See
State of Nature) ii. 611.
HOLLAND, when firſt allowed to rank among the Monarchies
of Europe, ii. 451.
HOMAGE, Ceremony of, degrading, when to be performed by
independent Sovereigns, i. 371-374. See Kings.
HOSPITALITY, Laws of, refpected by many favage and fe-
rocious Nations, i. 232, 3-enforced by the Chriftian Re-
ligion, ii. 13, 14.
HOSTAGES, Prifoners of War confidered as, i. 254-256-
cruelties exerciſed towards, from the 11th to the 15th
Century, i. 288-293.
-for Prifoners on Parole, ii. 180.
HowEL, his Arguments on the Precedency of Nations, ii.
380, n.
HUMAN Sacrifices, among Savage Nations, i. 83-under Na-
tural Religion, i. 103, 104, n.
HUNGARIANS, their Law in favour of Strangers, ii. 13, 14-
of Slaves, ii. 29.
HUNS, their devaftations of the Roman Empire, i. 212; 214:
215-Fabled Origin of, i. 216.
1.-J.
lxxx
ALPHABETICAL TABLE OF
I.-J.
JAMES, Son of Robert K. of Scotland, his detention by Henry
IV. of England, i. 272, 310.
JERUSALEM Confidered by the Turks as defiled by the
Chriſtians, ii. 140.
Its defence, fuppofed to be the duty of every Chriftian, ii.
142, 6. See Crufades.
Jews, though difperfed over the earth, yet retaining fome
characteriſtic marks of a diftinct nation, ii. 127-the ab-
horrence they were held in, and the perfecutions they
fuffered, from the 11th to the 15th Century, ii. 127-
130 and 2.
INCESTUOUS MARRIAGES, fanctioned by various Nations as
not contrary to Natural Law, i. 75.
INEQUALITY of Mankind, principle of the Scandinavian
Law of Nations, i. 209.
INFIDELS, right of conquering, in order to convert them,
when part of the European Law of Nations, ii. 109-
116-Treaties with, i. 167. See Treaties.
INGELRAM DE NOGENT, his cafe, how applicable to the quef-
tion of the Inviolability of Sovereigns, ii. 594.
INNATE Knowledge of Right and Wrong, how connected
with Conſcience, under Natural Law, i. 89.
INNOCENT IV. (Pope) his conteft with Frederick II. and the
decifion of the firſt Council of Lyons thereon, ii. 59–71.
INTERDICT of the Pope, its effect in enforcing Treaties,
ii. 54.
INVIOLABILITY OF AMBASSADORS, fully confidered, ii.
486-564.
In the cafe of Leflie,
Biſhop of Rofs, Ambaffador of Mary Q. of Scots, ii.
486-492-Opinion of the English Civilians thereon, ii.
487-490 (wherein of, Ambaffadors, procuring Infur-
rection, ii. 487, 8 - of a depofed Prince, ii. 488 - of a
Prince detained, ii. 488, 9- forbidding an Ambaſſa-
dor,
THE PRINCIPAL MATTERS.
lxxxi
dor, ii. 489,490 - an Ambaffador's abetting Treafon,
ii. 490.)—This opinion diſputed, ii. 492; 539.
INVIOLABILITY OF AMBASSADORS, two-fold; as to their
protection and privileges; and their exemption from the
civil and criminal laws of the country they are ſent to,
ii. 493, 4-confidered, ii. 494, 5-Examples of, and confe-
quences of the violation of this right, ii. 495-7-how
fuch violation is puniſhed, ii. 503, 5.
Rule of, in Civil mat-
ters; to beſtow every privilege the want of which would
interfere with the purpoſes of the Embaffy, ii. 497-ex-
tended to his fuitè, ib.-not unjuſt, becauſe known, ib.-in
England, under Stat. 7 An. c. 12; ii. 498-Origin of that
Act, ii. 499-Obfervations on, ii. 501-3-Cafe of Phil.
Weiſeman and a Daniſh Ambaffador, ii. 503-5.
In Criminal Cafes,
ii. 506 Reaſonings on, ii. 507. (See Inviolability of
Sovereigns) - confined folely to exemption from the jurif-
diction of the tribunals of the country where he refides
as Ambaffador, ii. 515; 545-Reaſons thereof; from his
character, and the freedom neceffary to the exerciſe of
his powers, ii. 516-519-Authors in fupport of this
pofition, ii. 519 and 2.-521.
Practice of Europe in
favour of, ii. 521, &c.-Inftanced in many cafes: viz.
Mendoza, the Spaniſh Ambaffador to England in 1584,
ii. 522, 3-L'Aubefpine, French Ambaſſador three years
afterwards, ii. 523, 4-Comte de Rochpot, French Am-
baſſador to Spain in 1601, ii. 525-De Zuniga, Spaniſh
Amb. to France under Henry IV. ii. 525-A Secretary to
another Spaniſh Amb. in the fame King's time, ii. 526-
An Attendant of Rofny (Sully) French Amb. in Eng-
land in 1603; ii. 526-Bedmar, Spaniſh Amb. at Venice,
ii. 527-Inoyofa and Colonna, Spaniſh Amb. to England
under Jac. I. ii. 527, 9-A Domeſtic of De Thou, French
Amb. at the Hague, ii. 529, 530-One of the fuite of a
Spaniſh Amb. to France in 1666, ii. 530, 1.-De Baſs,
French
f
lxxxii
ALPHABETICAL TABLE OF
French Amb. to Cromwell in 1654, ii. 531-Spaniſh Amb❤
to Charles II. of England, ii. 532-This right fometimes.
acknowledged even by the Turks, ii. 532-Reafonings on,
by English Lawyers; Coke, ii. 533-Comyns, ii. 502,
534-Hale, 534, 540, 1- Fofter, 540-2-examined, 542—5-
Cafe of Don Pantaleon Sa, whether contrary to the above
practice, ii. 535. See Ambaffadors.
INVIOLABILITY OF AMBASSADORS, as relates to States
through which they pafs, ii. 556-564-maintained by
Vattel, ii. 556-On the Cafe of Rincon and Frigoze, Am-
baffadors of Francis I. of France, ii. 557-denied by all
other authors, who hold that very cafe not to be an in-
fringement of the Law of Nations, ii. 558-560-and by
many other cafes ; viz. Saint André, Ambaſſ. of Henry II.
of France to Edward VI. of England, ii. 560, 1- Ambaff.
of Selim II. ii. 561-of the Republic of Poland, ii. 561,2-
of France to Scotland, ii. 562-of Venice to Great-Britain,
ii. 562, 3 - all detained, or commanded to depart, by States
through which they paffed-And of the Portuguefe Am
baffador to the States paffing through England in 1641,
ii. 563. .
INVIOLABILITY OF SOVEREIGN POWERS,
Principle of, ii. 507-neceffity of, ii. 508-part of their very
being, ii. 507-cauſe of their independence, ii. 510-512-
confidered in the cafe of a Public Functionary, ii. 508-
514-If a radical, an incurable, defect in all Governments,
ii. 509, 510-admits of no Judge, ii. 5 ro-512-No confti-
tutional remedy againft, in England, ii. 510-or any where,
ii. 510-512-Refource, in cafes of neceffity, not in the
Law, but in the violation of it, ii. 512, 13-Inftanced in
the English Revolution, ii. 513, 14. See R.
Cafe of Mary, Queen
of Scots, confidered at length, ii. 564-599. See M.
how this Inviolability
in the cafe of a Monarch is affected by his refidence in
a foreign country, ii. 579-599-This queftion ftated un-
fairly
THE PRINCIPAL MATTERS. lxxxiii
fairly in the cafe of Mary Q of Scots, ii. 577, 589-
Opinion of the Civilians thereon, ii. 578,9: 593,4-exa-
mined, 594, 6-Why it ſhould not be allowed, ii. 596, 8.
JOAN D'Arc, queftion as to her puniſhment, i. 262-her fur-
render as Priſoner of War, i. 304, n.-Sale of, as fuch,
i. 317.
JOAN, Queen of Naples, cafe of her puniſhment, i. 260-How
applicable to the queftion of the Inviolability of Sove-
reigns, ii. 583.
JOHN, King of England, effect of his being excommunicated
by the Pope, ii. 39, 40. See Pope; Appeal; Chivalry.
JOHN II. K. of France, price of his ranſom, i. 299. See i. 314-
his Crufade, ii. 146, 7-his Sentiments of Honour, ii. 175.
ISIDOR, the Collection of the Decrees of General Councils
attributed to him, forged, ii. 78, 9-The contents of that
forged collection the foundation of the papal ufurpations,
ii. 82-84-The real author of this forgery not certainly
known, ii. 85 and n.-its detection, ii. 86 and 2.
ITALIANS, cruelty of their Laws of War, from the 11th to
the 15th Century, i. 245. 8.
JUS ALBINATUs, a proof of the inhumanity of the early Law
of Nations, i. 235.
K.
KEEL-HAULING, Olaus - Magnus's minute defcription of,
ii. 351, n.
KINGS, diftinction between them and Emperors, ii. 387-
whence it arofe, ii. 387-8-is really in favour of Kings,
ii. 388-meaning of the term, ii. 388-390-Divided by
Coke, into Independent or Paramount, and Homagers
or Feudataries, ii. 390, 1- Anointed and not anointed,
ii. 406, 7-The title of Emperor affumed by many Kings,
particularly of England, ii. 392-4-applied to Cromwell,
ii. 394-affumed by the Monarchs of France, Spain and
Ruffia, ii. 394, 5-No natural pre-eminence attached to
either, ii. 395, 6. See Emperor of Germany.
£ 2
KINGS,
Ixxxiv ALPHABETICAL TABLE OF
J
KING, of the Ifles of Wight, Guernſey and Jerſey, Beau-
champ, E. of Warwick, created by Henry VI, ii. 418.
Of Man, legally Royal, ii. 419 and n.
KNIGHTS and Knighthood. See Chivalry.
Their qualifications, ii. 159-161-Chriſtianity one, ii. 161.
Degradation of, the ceremony attending, ii. 166, 7.
Dubbing or adopting, origin and ceremony of, ii. 188–
191. See Chivalry.
Companions of the fame order could not fight againſt each
other without leave of the Sovereign, ii. 192.
Of Gratitude, ii. 206.
KNOLLYS, Robert, Lord of the Caſtle of Derval, his conduc
in a cafe of Sponfio, i. 289-292.
Kulia, or Secret Laws of the Spartans as to Slaves, i. 181,
225.
L.
LABEO, QF. his difgraceful quibble on the Capitulation.
with Antiochus, i. 192 and n.
LANGOBARDS, fabulous account of, i. 217.
LATERAN Council, (Third) decree of, againſt the ſlavery of
Chriſtians, ii. 31.
LAW OF NATIONS,
What it is; Cap. I. i. p. 1, &c. See p. 24, 25.
Characteriſtic diftinction between that, and, the Civil or
Municipal Law, i. 3, 32, 33 - not antiently well under-
ftood, i. 220 - inftance of refemblance between thoſe
Laws, ii. 239, 240-Whether it is merely the Law of Na-
ture, or compofed of pofitive inftitutions, i. 4-Names
of Authors pro and con. i. 4-Summary of the arguments
uſed to ſhew that it is merely the Law of Nature, i. 5—9-
The reafons for questioning thofe arguments, i. 9, &c.
Particulars in which the Law of Nature and of Nations
differ, i. 9, 13, 18, 19 - general diftinctions between thoſe
Laws, i. 15, 19, 23.
2
In
THE PRINCIPAL MATTERS.
lxxxv
In general, founded on cuftom, i. 22, 26-In cafes without
precedent, it may be faid to be the Law of Nature, i. 24.
LAW OF NATIONS, Secondary, what, i. 29.
May be confidered as the Law of Nature, modified by the
Cuſtoms of Nations, i. 24, 25, 35.
Breach of, how remedied, i. 34, 193.
Principle of, according to Montefquieu, i. 36. See ii. 203.
See Law of Nature; Religion (Natural.)
Foundation of, i. Cap. III.
Neither Natural Confcience nor Natural Religion can
produce a certain univerſal Law, on which to ground
the principle of a Law of Nations, for all the world,
i. zo. See i. 36.
Effect of the Chriſtian Revelation on this Subject, i. 120,
125. ii. 4-7. See Religion (Chriftian.)
Origin of the Obligation of the Law of Nations, i. 126.
Not the Law of all Nations, but of fuch claffes as are
united by fumilar religions or moral Syſtems, i. 127, 8:
137: 157: 162, 9: 199: 393, 5.
This propofition never before broadly advanced, i. 169.
In Europe and her dependencies, the moral Syſtem is
founded on Chriſtianity, i. 128; 162. See Religion
(Chriftian.)
Not the Law of the World, Cap. IV. i. p. 131.
Manners of various Nations affect their intercourſe with
each other, i. 131, 2-Inftances thereof, i. 132, 5.
The Laws of one clafs of Nations not to be applied to
thoſe of another clafs, i. 135, 7-Circumſtances which
cauſe ſuch claſſes, i. 137, 8. ii. 474,5,6-Diſtinct claffes
have diſtinct cuſtoms, i. 139.
Effect of Religion and its Sects on this Law, i. 139-147.
ii. 466-477. See Religion (Chriſtian) - of the Balance
of Power, i. 147-Hints of many writers, that the
Law of Nations is partial, and not univerſal, viz. De
Callieres, i. 149-Van Bynkershoek, i. 150-Vattel, i. 150, 1-
Grotius, Suarez, i. 151, 2-Burlemaqui, i. 153, 5-Montesquieu,
i. 156, 7.
£3
Hoay
lxxxvi
ALPHABETICAL TABLE OF
LAW OF NATIONS,
How the different claffes of Nations may be diftinguiſhed, Cap. V.
i. p. 159; 160.
On the one hand, by their making treaties, entertaining
embaſſies, deciding by one known fettled Rule, uſing
the fame Cuſtoms and Religion, i. 160, 1-or, on the
other, by refusing to acknowledge authorities received
by other States, i. 161, n.
Some Nations in a kind of twilight between two distinct
Laws of Nations, i. 162, 3-Such formerly were the
Turks, Ruffians, Poles and Pruffians, i. 163, 5-Their ac-
ceffion to any diftin&t Law gradual, and generally by
Porte, and very lately of
Treaty, as in the cafe of the
the Barbary States, i. 165, 8.
Hiftory of, in Europe,
See ii. 331, 2, 4-7.
As obferved by the Greeks and Romans, Cap. VI. i. p. 171 &
Seq.-Variation between them, cauſe of, i. 195-200 - as
obferved by the Scandinavians, Cap. VII. i. p. 201, &c.
From the fall of the Roman Empire to the 11th Century,
Cap. VIII. i. p. 211. No known or fettled Code of
this Law during that period, i. 236.
From the 11th to the 15th Century, Cap. IX. i. p. 241.
An inftance (perhaps the firſt) in which it was confidered
as a Science, i. 259.
Improvement of, Cap. X. i. 231-8. See Charlemagne.
under the Chriftian Religion, arofe di-
rectly from that Religion, and not from extraneous
cauſes, ii. 6-11.
Influence of particular Inftitutions on; namely, the Feudal
Syſtem; the Chriftian Religion; Chivalry; Treaties;
Precedency of Nations; generally ſtated, Cap. XI,
i. p. 239.
by the Feudal Syftem, Cap. XII. i. p. 337-395.
See F. and ii. 231.
by Chriſtianity, and the Ecclefiaftical Eftabliſh-
ments, Cap. XIII. ii. p 1. See Religion (Chriſtian); and
ii. 231.
LAW
THE PRINCIPAL MATTERS.
lxxxvii.
LAW OF NATIONS, Hiftory of,
Influence on,
by Chivalry, Cap. XIV. ii. p. 155-230. See Chi-
valry, and ii. 231.
by Treaties and Conventions, Cap. XV. ii. p. 231
-358. See Treaties.
under Rank and Claims of the Nations of Eu-
rope, Cap. XVI. ii. 359–465.
Hiftory of, continued from 15th to 17th Century, Cap. XVII.
ii. 466—605.
in the effect of the Lutheran Reformation, ii. 466--
474-the enmity between the Mahometans and Chriſti-
ans, ii. 474--477·
As to Ambaffadors, their Privileges and Immunities,
ii. 477-564. See Ambaffadors; Inviolability.
Imperfection of this Law, even during the laft mentioned
period, ii. 599-inftanced in the cafe of Francis I. of
France, ii. 599-601-in the rigour of the Laws of
War, ii. 602-Caufes of, ii. 603, 604.
In the Age of Grotius, Cap. XVIII. ii. 606, ufque ad fin.
The term Law of Nations vague and indeterminate,
ii. 606- Various opinions on, ib.-Confined by many to the
Roman Civil Law, ii, 607-9-this calculated to lead
nations into error, ii. 609-inſtanced in the debates on the
reftitution of Calais demanded in 1567, ii. 610-effect of
this uncertainty, ii. 612, 13-Early Writers on the Sub-
ject; Albericus Gentilis ; Balthazar Ayala, &c. ii. 613, 14-
See Grotius; Puffendorf; Vattel.
LAW OF NATURE,
Divided by fome, into abfolute and hypothetical, i. 28, 30-
This method nugatory, i. 31, 2.
The Obligations of, Cap. II. i. p. 35-119.
Concerns either animate, or inanimate beings; the former
governed either by inftinct or reafon; Man by both,
↓ 41.
LAW
Ixxxviii
ALPHABETICAL TABLE OF
LAW OF NATURE,
Binding even on Atheiſts, i. 53, 94.
Unable of Itfelf to produce a definite Law for all man-
kind, i. 35.
Univerfal and immutable in general principles; but various
and uncertain in practice, i. 35, 40, 53, 56 & feq. 73
& feq. 87, 118, 119.
A few great principles, of univerſal ſtability, i. 71.
Whether particular moral duties are obligatory from the
force of natural law, independent of the revealed com-
mands of the Deity? i. 42, 57-
i.
The Advocates for and against the above propofition,
1. 42, 3-Summary of Arguments in fupport of it, i. 43—
56-examined, i. 56 & ſeq.
The Hiftory of Man the only guide to this Law, i. 62,9.
To be binding on all, must be uniform and univerfally re-
ceived by mankind, i. 63-66; 87; 118, 119.
Crimes against the Decalogue held by Suarez to be crimes
againſt the Law of Nature, i. 81-But committed by ald
Savage Nations, i. 81 & feq. See Adultery; Children 3
Parents.
This Law, (as far as it concerns the particular Ramifications of
Morality) either does not now exiſt, or is fo confounded
with prejudice and cuftom, as to be no certain, fatis-
factory, and univerfal rule, i. 90, 91-and cannot there-
fore, in thofe ramifications, be obligatory upon all
1. 94, 95, 107. See ii. 337-340.
See Religion.
LEGATUS, an indiftinct term to fignify an Ambaſſador, or a
Deputy of a Province, ii. 502, 609.
LESLIE (Bp. of Roffe) fee Inviolability of Ambaffadors - his
knowledge of the Law of Nations as to the Right of
Ambaffadors, ii. 491, 2.
LEWIS XI. his conduct to Charles the Bold, i. 277,
277,8-his
distrustful conference with Edward IV. i. 279- his caprice
in the ranfom of a priſoner, i. 307. See Chivalry.
LICINIUS,
THE PRINCIPAL MATTERS.
lxxxix
LICINIUS, his cafe how applicable to the Law of Nations on
the Inviolability of Sovereigns, ii. 581, 2.
LIEGER Ambaffadors, whence fo called, ii. 184, n.
LINDESEY, See Redeman; Chivalry.
LOTHARIUS, King of Lorrain, his conteft with the Pope as
to his Queen, ii. 43, 4.
LUITPRAND, King of the Lombards, his refpect for the
Chriſtian Religion, i. 231.
LUTHER, See Religion (Chriftian).
LYONS; why chofen for the holding the firſt Council there,
ii. 61-See Councils.
M.
MACKENZIE, Sir George, his opinions on the Precedency of
Nations, ii. 372, 5, 6: 442, n; 443, n.
MAHOMETAN RELIGION, its effect on the Law of Nations,
i. 139, 145, 6: ii. 474, 475, 6. See Crufades; Treaties.
Principle of, to deftroy its ene-
mies, ii. 140, 1- how qualified, ii. 141, 2.
MAINFROY, natural Son of Frederick II. his cruelty to
Prelates taken in War, i. 246..
MALMSBURY Lord; permitted to quarter the Arms of the
Houſes of Brandenburg and Orange, ii. 196. See Chi-
valry.
MAN, Ifle, Kings of, ii. 419.
MARCOMIR, King of the Franks, cafe of his breach of Treaty
with the Romans, i. 220.
MARGARET, Countefs of Richmond, mother of Hen. VII. her
zeal for the Cruſades, ii. 148, 9.
MARRIAGE, Treaties of, their effect on the Law of Nations,
ii. 241—256-ſmall among the Nations of Antiquity and
Infidel people of modern times, ii. 241-Rights of Fe-
males in the German and Scythian Nations, ii. 241-
transfer of Empires by marriage nearly peculiar to
Europe, ii. 242-Inftances of, in the Kingdoms of the
North and West, ii. 242-particularly in the Kingdom of
Navarre,
XC..
ALPHABETICAL TABLE OF
Į
Navarre, ii. 243-Duchy of Auſtria, ii. 243, 4-In Spain
and Italy, ii. 244-France exempt from, by the Salic Law,
ii. 244-extenfive effects of, ii. 244, 5-by which treaties
became neceffary, ii. 245, 6-Inſtances of; on the mar-
riage of John, K. of England, ii. 246-William, K. of
Sicily in 1178, ii. 247-Philip of Flanders in 1193, ii. 247-
Alexander, K. of Scotland in 1210, ii. 247-Charles VIII,
of France in 1493, ii. 248-Indelicacy of thefe treaties,
ii. 249-Treaties to prevent particular marriages, ii. 250-
No general form preſcribed, ii. 250.
MARRIAGES of Sovereigns by proxy, and why, ii. 251-
Inftance: Alphonfo, K. of Leon in 1067, ii. 251-Con-
fummation neceffary, ii. 252-Ceremony of, by proxy,
ii. 252, 3, and n.-Diffolution of, by divorce, ii. 254-6..
MARY, Queen of Scotland, cafe of her impriſonment and
execution, examined, as a precedent in the European
Law of Nations, ii. 564-599- her character by Knollys,
ii. 508, n.
State of the cafe, ii. 564-571. Implications therefrom;
that ſhe was confidered as an Enemy and as a real Sove-
reign, ii. 572 - the pretext and plan of the Statute on
which ſhe was condemned, ii. 573-The reafoning adopted
to juſtify it, ii. 574-6-Injustice of, ii. 576-Queſtion and
opinion by the Civilians on her cafe, ii. 577, 8. Sec
Inv. of Sovereigns. Arguments on, ii. 578-580-Pre-
cedents relative to, examined, ii. 580-585. (See De-
jotarus; Licinius; Conraddin; Robert, K. of Naples;
Joan, Q. of Naples)-Morton's bold propofition to put
her to death, ii. 585-Her defence, ii. 586-8-her de-
fignation, in the Record and Commiffion, ii. 588-the ex-
tent of the precedent eſtabliſhed by her condemnation,
ii. 590, 2.
MASSACRE of St. Bartholomew, ftiled a Remedy, ii. 473
1
and n.
MATILDA, of Scotland, cafe of her affuming the veil to fe-
cure her chaſtity, i. 244,
5
MERCHANTS
THE PRINCIPAL MATTERS.
xci
MERCHANTS, how regarded by the Antient English Laws,
ii. 344-their protection in an Enemy's Country on the
breaking out of War, ii. 356-8.
MONTPELIER. See Anjou, Albany.
MORAL Duties, how obligatory. See Law of Nature.
Philofophy, the whole of, explained in Puffendorf's
great work, ii. 623, 4.
MORAL Senfe, confounded with prejudices, and not to be de-
pended on, i. 90.
MORALS what, i. 115. Every Inftitute of, univerfally intended
to produce happineſs; but the character of the inftitute
uncertain, i. 115, 116. Different customs may be equally
thought moral, if good is their propoſed end, i. 117.
of Monarchs, interference of the Popes in regulating,
ii. 41-49.
MORALITY, Obligations of, under Natural Law, diverſity of
opinions on, i. 71, 87.
MUTILATION, a barbarous Military puniſhment, in Europe,
from the 11th to the 15th Century, i. 248, 252.
NAPLES, See Sicily.
N.
- Claim of Charles VIII. of France upon, ii. 263.
NATIONS, their different claffes. See Law of Nations.
of Europe, their origin, i. 202.
Precedency of, i. 143; 331. See Poſt.
their interference with each other, Origin of,
i. 367, 8.
NATIONS OF EUROPE, Rank and Claims of, fully confidered,
Cap. XVI. ii. 359-465.
The Subject, though apparently frivolous, difficult, ii. 359-
361-for want of a competent fovereign tribunal, ii. 361.
When equally independent, muft originally be equal in
rights, ii. 362-Opinion of Vattel on this Subject, as to
the ſmaller yielding to the larger, in priority of place,
ii. 363-queſtioned, ii. 364,5-Diſtinction between Equality
and
!
xcii
ALPHABETICAL TABLE OF
and Superiority, ii. 365-the latter afferted by States,
even ad ravim, ib.-inftances of, ii. 366, 7-between the
Engliſh and Spaniards about 1600, ii. 367-9-reafonings
of Sir Robert Cotton on, ii. 369, 370-examined, ii. 370,
&c.
NATIONS OF EUROPE, Rank and Claims of,
Antiquity, one great ground of precedence, ii. 370, 1-feems
the faireſt claim, ii. 379-Priority of converſion to Chrifti-
anty, ii. 371-denied by Grotius, ii. 371, 2-allowed in the
ceremonial of the Pope's chapel and ecclefiaftical affem-
blies, ii. 373,4-Eminency of the Throne Royal, ii. 374-
Nobility of blood in the Monarch, ii. 375-Antiquity of
the reigning family, ii. 375, 9-fupported by Mackenzie,
having Scotland exprefsly in view, ii. 376. Weight and
independency of the Nation; ſupported by Grotius and
Vattel, ii. 377-allowed in the cafe of Cromwell, ii, 377, 8-
other grounds of precedence, ii. 379-381-All thefe
grounds uncertain, ii. 381.
Facts relative to; The uniform and uncontested pre-
eminence of the Pope, ii. 381. before the Reformation,
ii. 382-extended to his Ambaffadors and the Clergy in
general, ii. 384-particularly Cardinals, ii. 385, 6.
Next in rank, the King of Germany, Emperour of the
Romans, ii. 386 (See Emperour of Germany; Kings)-
The Turkish Emperour equal to him by exprefs treaty,
ii. 442, 463. yet not fuperiour to other Kings, ib.
Republicks held inferior to Monarchies, ii. 444-this prin-
ciple unjuft, ii. 445, 6. according to Vattel, ii. 451, 2-
Reaſons why it was adopted, ii. 446--9-Venice and Hol-
land the only European Republicks now allowed to rank
with Monarchies, ii. 449-451-England under Crom-
well, ii, 452.
Minute points in the Ceremonial of Europe on this Subject,
ii. 453.
France and Spain, conteft between for precedence, ii. 454-
462. caufe of, ii. 454, 5-firft at Venice in 1558, ii. 455-
at the Council of Trent, ii. 455-7-at the Congreſs of
Verving
THE PRINCIPAL MATTERS.
Xcili
Vervins in 1598, ii. 457-at London in 1617, ii. 457-8-
the moſt ſerious and celebrated, at London in 1661,
which terminated in favour of France, ii. 458–461.
Rank of other Nations undecided, ii. 463.
Precedency of France next to the Emperor generally al-
lowed before the Reformation.
Equality of Crowned Heads now generally allowed in
Europe, ii. 461, 4. firft broached by Guftavus, ii. 462.
NATURAL LAW. See Law of Nature.
NATURAL RELIGION. See Religion.
NATURE, various fenfes of the word, i. 63, 5-State of;
See S.-Law of; See L.
NICHOLAS I. Pope, his interference with Lotharius of Lor-
rain, ii, 43, 4-
NOGARET; See Boniface VIII.
NORMANS and Danes, their exacting tribute from other Na
tions, i. 221-their cruelty and infolence, from the 11th
to the 15th Century, i. 244.
NOTARIES appointing, a mark of Sovereign power,
ii. 402, 3.
NUNCIOS, Ambaffadors of the Pope fo termed, ii. 384-their
precedence, ii, 386.
NUN's, the refpect antiently paid to them, i. 244.
O.
OATH of the Pope and Emperour, not to affaffinate each other,
during the Coronation of the latter by the former, i. 276.
OATHS, abfolution from by the Pope, ii. 125.
ECUMENICAL COUNCILS, i. 143-why fo called, ii. 55-their
conftitution and origin, ii. 55, 9. See Council; Pope.
CECUMENICAL BISHOP, who, and when firft fo ftiled,
ii. 81.
ODIN, terrible defcription of that Deity, i. 207, 8.
ODIN'S Hall, in Sweden, defcription of, i. 205.
Palace, the Paradife of the Goths, i. 206.
QJEDA,
xciv
ALPHABETICAL TABLE OF
OJEDA, his ridiculous proclamation on the Invaſion of Ame-
rica by the Spaniards, ii. 113.
OLERON, Laws of, as to Pilots and Shipwrecks, ii. 345—9.
Oгно, Emperour, the obligation to protect the Chriſtian
Church enforced at his Coronation, ii. 18.
OTTOMANS, See Mahometans; Religion.
OUTLAWS, right of protecting by a foreign State examined,
ii. 319.-Treaties to render up, their principles and effect,
ii. 318-320-Inftances of, ii. 319, 320.
P.
PAPA, (Pope,) derivation of the Word, ii. 88. n.
PAIX BRISEE, what, and how puniſhable, i. 354,
PARADISE, notions of, entertained by the Celts and Scandi-
navians, i. 206.
PARENTS, inhumanity of Savage Nations towards, i. 81.
PARLIAMENT of Christendom, the Ecumenical Councils
fuch in effect, ii. 59.
PAROLE, Liberty of Prifoners on, probable origin of, in
Chivalry, ii. 179. See Chivalry.
PASQUIER, his account of the origin of the States-General
in France, ii. 97. n.
PASTOUREUX or Shepherds, Crufade of, ii. 144-6.
PATER patratus, his office among the Romans, i. 185.
PAULUS Æmilius, account of his triumph, i. 191.
PAX Ecclefiæ, what and how religiously regarded, ii. 16-18.
PAYEN, Geoffry de, killed in hatred of his Commander Clif-
fon, i. 297.
PERIGORD Cardinal, his humane interference to prevent the
battle of Poitiers, ii. 51.
PFEFFEL, his account of the Author of the forgery of Ifidor's
collection, ii. 85, 88, 1.
PHILIP King of Caftile, cafe of his detention by Henry VII.
of England, i. 273, 4.
PHILIP IV. of France.
See Boniface VIII.
PILOTS, Laws of Oleron Regulating, ii. 345-9.
PIRACY
THE PRINCIPAL MATTERS.
XCV
PIRACY held honourable among the Greeks, 177, and n.
ii. 340.
PIZZARO, inftance of his injuftice, i. 136.
PLATEA, behaviour of the Spartans at the Surrender of,
i. 180, 3.
POINT OF HONOUR, what, and its influence, ii. 156—8.
POLAND, the Conduct of Ruffia and Pruffia towards, not juf-
tifiable by the Chriſtian Law of Nations, ii. 239.
POISON, and poiſoned Arms, employed in European Wars
from the 11th to the 15th Century, i. 252, 4.
POITIERS, battle of, i. 299, 302, 314; ii. 51, 2.
POLITICAL Freedom, in Europe, the Lutheran Reformation
intimately connected with, ii. 467.
POPE of Rome; origin of his power, ii. 32-36-How he
became Director of the affairs of Europe, ii. 37.
His Excommunications, how they acquired force, ii. 38-
in the cafe of John K. of England, ii. 39-effect of in the
cafe of Peter of Bourbon, ii. 52-of the Emperour Henry
IV. ii. 88-91. z.- in other cafes, ii. 91, 122, 3, 4-
how defpifed under the Lutheran Reformation, ii. 470.
His interference, by mediation, advice, and correction
as to the affairs and morals of Monarchs, advantageous,
ii. 41.-Inftances of, in the cafe of Theodofius, ii. 41-
Lotharius K. of Lorrain, ii. 43-France and England,
ii. 45-Henry II. of England, ii. 46.-Richard I. of Eng-
land, ii. 47.-Henry VI. Emperour, ii. 48, 9-Simon
Montford, ii. 49-Edward III. of England, ii. 49.
in matrimonial cauſes, ii. 43; 254.
→→→→ His right of affembling Councils, ii. 58, 9-his power in
and through them, ii. 59-77. See Councils.
Origin of his power as to the depofition of Sovereigns;
inſtanced in the cafe of the Emperor Frederick, iin 59—
71. See ii. 105. and poſt.
Liable to be depofed by a General Council; inftanced in
John XXIII. and Eugene IV, ii, 77. See ii, 103.
POPE,
xcvi
ALPHABETICAL TABLE OF
1
Pore, his Ufurpations ;-origin and hiftory of, ii. 77-125-the
foundation of, in the forged collection of decrees at-
tributed to Ifidor, ii. 78. See Ifidor - his power before the
publication of that collection, ii, 79-Elected by the Em-
perors, ii, 79-when, and by whom firſt ftiled ŒEcumenical
or Univerſal Biſhop, ii. 81-the Confecrator of Charle-
magne and fucceeding Emperors, ii. 81.
Thefe Ufurpations fyftematically proceeded in, ii. 86-
See Gregory VII. Celeſtine III.-when firft extended to
temporal concerns, ii. 92, 3. See Boniface VIII.
his pretenfions to be the fole difpofer of Earthly King-
doms, ii. 107-inftances of, relating to Spain, ii. 107-
Scotland, ii. 108-Ireland, ii. 108-110-Venice, ii. 110-
America, ii. 111-116-Sicily and Naples, ii. 116-124-
France and Arragon, ii. 122, 3 - theſe pretenfions dif-
puted by Proteftants after the Lutheran Reformation,
ii. 471-but ſtill ſupported by the Catholicks, ii. 472—4,
The fole Cafuift of Catholicks in Chriftendom, and ab-
folver from Oaths, ii. 124, 5; 473; 601.
Cruſades an Engine of his Power, ii. 150-3.
His precedency among the Sovereigns of Europe, ii.
381-6.
POPES and Emperors, their mutual jealoufies, i. 276. See
i. 386, Oath.
POSTHUMUS, cafe of his capitulation with the Samnites,
i. 186.
POSTLIMINIUM right of, what, i. 174. n.
PRIMI BARBARORUM, the Ruffians and Poles fo termed, i. 163.
PRISONERS of War-Eaten by Savage Nations, i. 85, and 7.-
cruelties of the Druids towards, i. 206-of the Sclavo-
nians, Thuringians and Avars, i. 216-Romans, i. 189,
190. (See Triumph)-Goths, i. 223, 4-of the Italians,
i. 246.
Confidered as Hoftages, on whom to retaliate the cru-
elty, and by which to enforce the compliances, of the
Enemy, i. 254-6.
PRISONERS,
1
THE PRINCIPAL MATTERS.
xcvii
PRISONERS, how unjustly treated under the European Law of
Nations from the 11th to the 15th Century, i. 272; 316,
&c.
Belonged to thofe to whom on being taken they gave
their faith (faye) i. 303, 4-Reſcued or not reſcued, ii.
183, 4-Inſtances of; the cafe of Thomas Vercler, ii.
184-Even though the Captor was afterwards taken; the
cafe of Matthew Redeman an English Knight, prifoner
to James Lindefey a Scottiſh Knight, ii. 184-6-of the
Duke of Gueldres, priſoner to Avrant, a fimple Eſquire,
ii. 186-8.
Slavery of, See Slavery; Ranfom of, See Ranſom ;
Parole; Chivalry.
PRIVATE War, See Feud (Deadly).
Origin and conduct of, examined, i. 293-
297; i. 343. n.-the moſt valuable right of an antient
Baron, i. 340, I - cauſes of, among the antient French
Barons, i. 348-forms of declaring, i. 351, 2 - mode of
terminating, i. 355-by taking bonds of affurance, i.
355, 6-inefficacious, i. 357-by Duel, i. 357-In Germany,
i. 359-In Spain, i. 361-In Sweden, ib.-In the Northern
parts of Great Britain, i. 362-5-Among Ecclefiafticks,
in confequence of their poffeffing Baronies, i. 365-Re-
ftrained by the Chriſtian Religion, ii. 15. & feq.
PROTECTION, Treaties of, their effect on the European
Law of Nations, ii. 265-8-inftanced in the cafe of, the
Iſle of Man in 1205 and 1212; ii. 266-Genoa, in 1458,
ii. 267 - Holland, ii. 268.
PROTESTANTS. See Religion (Chriftian.)
PRUSSIA, its erection into a Kingdom, hiſtory of, ſtated and
examined, ii. 410-414.
PRUSSIANS, their Acceffion to the European Law of Na-
tions, i. 164, 5-their Converfion to Chriftianity, ii. 150.
PUCELLE, See Joan d'Arc.
PUFFENDORF, cauſe and nature of his work on the Law of
༣
Nature and Nations, ii. 623, 4-its excellencies and de-
fects, ii. 624, 5•
09
PUTTER,
Xcviii
ALPHABETICAL TABLE OF
蕾
​PUTTER, his account of the forgery of Ifidor's collection of
Decrees and its detection, ii. 85, 86. n.-his Remarks on
the peculiar fituation of the K. of Bohemia confidered,
ii. 416-419.
O
QUIVETAINE, See Chieftain.
R.
RANSOM OF PRISONERS, Origin, Inftances and Confequences
of, from the 11th to the 15th Century, i. 298-320-
Rules of, i. 299-Privilege of Sovereigns as to the Ran-
fom of Priſoners taken by their Generals, &c. i. 299;
301; 307 - Optional in the Captor to ranfom or not,
i. 301-Political reafons preventing ranfom, i. 301, 2-
See ii. 166, 7-Who intitled to receive the ranſom, i. 303-
Mode of eftimating generally one year's Revenue, i.
304, 305. n.-See ii, 171, 2- by perfonal Confequence,
i. 306, 7-Capricious, i. 307-by the Prifoner himſelf,
ii. 167-Effects of Ranfom; advantageous, i. 308, 9-
and difadvantageous, i. 309-315-Value of Ranfom
transferable, i. 316-320-as a prefent, 318-Effect of
the Prifoner's death in fuch cafe, i. 318 -of the Captor's
death in cafe of parole given to the Prifoner, ii. 182-of
the death of a Prifoner exchanged, ii. 183-Securities for
Ranfom, i. 318-Releaſe of a Prifoner on parole to obtain.
his Ranfom, See Chivalry.
RAOUL, Comte d'Eu cafe of, being an Engliſh Priſoner re-
turning to France on his parole, and there executed,
i. 282, 4-Villaret's opinion of it, See Villaret.
REASON, that faculty which teaches to draw conclufions,
not to aſcertain premiſes, i. 60-63; 91, 2. n.
No obligation on man
abide by its dictates, i. 95.
tions (foundation of)
(exclufive of Religion) to
See Religion ;-Law of Na-
REDEMAN Matthew, an English Knight, cafe of his good
faith as prifoner to Lindefey, a Scottish Knight, ii.
184-6.
(
REFOR-
THE PRINCIPAL MATTERS.
xcix
REFORMATION. See Religion (Chriftian).
RELIGION, its effect in uniting men and Nations, ii. 33;
154. Sée poft.
NATURAL, the Principles of,i 95-98-Objec-
tions to, i. 98-its obligation not univerfal, i. 99—102,
113, 114-diſguſting varieties and inconfiftencies of Na-
tural Religions, i. 103-107-even in civilized life, i.
107113.-(See Morals)
CHRISTIAN-Probable reafons for its Revelation,
i. 120, 123. 2.-its effect on the Law of Nations, i. 125; 140
-146; 172; 230, 231, 6; i. 334.-ii. 1, &c. See poſt-
extended by Charlemagne, i. 322-its effect in tending to
flavery, i. 228-230.
influence of that, and the Ecclefiaftical Eftabliſh-
ments on the European Law of Nations, from the 11th
to the 15th Century-Cap. XIII. ii. p. 1-154. .
The conduct of Chriftian Nations fuperiour in Regularity
and benevolence to all others, ii. p. 2-compared with
the Greeks, 2-Romans, 2, 3-Carthaginians, 3 - Mahome-
tans, 3- Chineſe 4.
Caufes of its inefficiency in Regulating this Law during
thofe Centuries, ii. 4—7.
Its effect, in foftening the manners, ii. 11-in favour of
Strangers, ii. 12-14-by oppofing private war, ii. 15, &c.
in inculcating a Reverence for places of worship,
ii. 16-18-for particular days, ii. 19-eftablishing the
Truce of God, ii. 21, &c. See T.-the Brotherhood of
God, ii. 24, 5 - See B.-abolishing Slavery, ii. 26. See S.-
exempting Chriftians from Slavery, ii. 31.
Its moft remarkable effects aroſe from the form of its
Church-Government, ii. 31, 2-which caufed the various
nations to coalefce in one great bond of union, ii. 36-
and fupplied a common tribunal among Sovereigns, ii.
37-40-Advantages of fuch a tribunal, ii. 40, 1-See
Councils, Pope.
g 2
RELI
ALPHABETICAL TABLE OF
RELIGION, CHRISTIAN, Its abuſes, by the Ufurpations of
the Pope, ii. 77, &c. See Pope.
Its extenfion, a pretext for conqueft, ii. 109; 111–116;
126-Inftances of, in the conqueft of Ireland by K.
Henry II. ii. 108-of America; by the Spaniards, ii.
111-114-by K. Henry VII. ii. 114-by Q. Elizabeth
and K. James I. ii. 115.
I
Its influence on the States of Europe as to Nations in other
quarters of the World, and of a different Religion, ii.
125-153-the Jews, ii, 126-130-(See J.)-Infidels, ii.
130-inftanced in the Crufades againſt the Turks, and
Saracens or Moors, ii. 131-150. See Crufades.
General Recapitulation-on the whole Chriſtianity as injuri-
ous perhaps to this Law in its corruptions, as beneficial
in its purity, ii. 153, 4.
Its Reformation under Luther; effect of, in changing the
affairs and public opinions of Europe, ii. 466-474-in-
troducing political freedom, ii. 467-dividing Europe into
Catholic and Proteftant Nations, ii. 457-9-who formed
diſtinct alliances, ii. 469, 470-though united againſt,
and equally defpifed by, the Turks, ii. 474-6:
RENUNCIATIONS of Kingdoms, i. 369 - Treaties for, the
the principles of, ii. 268—270-inſtanced in the cafe of
the kingdoms of France and Navarre in 1316; ii. 270, 1-
of France by the Treaty of Bretigny, ii. 271.
REPRISALS, within the Law of Nations, i. 294-Private, their
effect, i. 294, 6.
REPUBLICKS confidered as inferior to Monarchies in the
Precedence of the Nations of Europe, ii. 444, &c. See
Nations of Europe, Rank and Claims of.
REVOLUTION in England, conducted conftitutionally by the
Engliſh, but not by the Scotch, ii. 513, 514.
RICHARD I. of England, inftance of his Magnanimity,
i. 261-cafe of his detention and impriſonment by the
Duke of Auftria, and being fold to the Emperor; not
perhaps
THE PRINCIPAL MATTERS.
ci
*
perhaps contrary to the then exiſting Law of Nations,
i. 270-2; 310 - Sold to the Emperor, i. 316.
RICHARD I. Interference of Pope Innocent III. in his favour,
ii. 47.
His cruelty to the Saracen Prifoners at the Cap-
ture of Ptolemais, ii. 138, 9.
RICHLIEU, Cardinal, cafe and cauſe of his detaining the
Elector Palatine, i. 274. n.-ii. 313.
RIGHT, definition of, i. 117.
ROBERT, King of Naples, his cafe, how far applicable to
the queftion of the inviolability of Sovereigns, ii.
583-5.
ROBERTSON, Dr. fome obfervations as to Private War,
eſcaped him, i. 153, 6.-as to Slavery, ii. 31-and par-
ticularly as to the account of the Imperial title, ii.
Ch. XVI. 396-442.
ROLLO, his infulting mode of doing homage to Charles the
Simple, i. 373.
ROMAN Empire, Ruin of, i. 212.
ROMANCE, whether it may be quoted as Authority, ii
194. n.
ROMANS, Law of Nations as obferved by, Cap. VI. i. 184,
&c.
Cruelty of their Triumphs, i. 189–191.
Chicanery, of their Treaties, i. 191-193.
Their praife-worthy Conduct to Conquered Na-
tions, i. 194.
Their Principle of Action, Origin of, i. 195, &c.
ROME, Biſhop of. See Pope.
ROWTERS, Soldiers of Fortune, ii. 299.
RUSSIAN Empire, its acceffion to the European Law of Na-
tions, i. 163, 4; 168.
S.
SA, DON PANTALEON, his cafe, as to the privilege of
Ambaffadors, fully ftated and commented upon, ii. 535.
8 3
SABBATH-
eli.
ALPHABETICAL TABLE OF
SABBATH-breaking, puniſhment of, between the 11th and
15th Centuries, ii. 19, 20.
SAILORS, private, quarrel between a Norman and Eng-
lifhman the cauſe of a dreadful war, i. 295.
SALADIN, Summons of the Emperor Frederick II. to, pre-
vious to the ſecond Crufade, and his anſwer, ii, 134, 5-
his behaviour to the Prince of Antioch his priſoner, ii.
137-to Chatillon, ii. 142.
SALE of Dominions by their Sovereigns, in what cafes al
lowable under the European Law of Nations from the
11th to the 15th Century, ii. 256-8-Inſtances of, in
the Marquifate of Lufatia by Theodoric, Landgrave of
Thuringia, in 1301, ii. 258, 9-City and Territory of
Meeklin in 1333, ii. 259-City and County of Lucques,
-Sovereignty of Frankenstein. ib.-Avignon to the Popes,
ii. 260-Mortgage of the Duchy by Robert Duke of
Normandy, ii. 260-Sale of Reverfionary Intereft inftanced
in Brittany, purchaſed by Lewis XI. and Conftantinople
by Charles VIII. of France. ii. 261, 2. See Bequeſt;
Gift.
SALIC Law in France, one favourable effect of, ii. 244.
SALVAGE, Law of the Danes to regulate, probably the
first public Conſtitution on the fubject, ii. 343.
SARMATIANS, the parent nation of the Goths or Scandina
vians, i. 202.
SAXONS, their Laws to encourage hofpitality, ii. 14—16-
As to Religion, See Church - Againſt ſlavery. ii. 28.
SCANDINAVIANS, principle of their Law of Nations, i. cap.
VII. p. 201, &c. Reafon of, deduced from their religion, i
208-210-their predatory expeditions. i, 218-their trea-
chery in making treaties, i. 219.
SCOTCH, Cuftoms of, war, their cruelty from the 11th to
he 15th Century, i. 245.
SHIPWRECK, Laws of Oleron relating to, ii. 346, 9.
SICILY and Naples, revolutions of, and how difpofed of
from time to time by the Popes, in virtue of their af-
af
THE PRINCIPAL MATTERS.
cin
fumed fupremacy, ii. 116-1244viz. by Pope Nicholas II,
. 117-Innocent III. ii. 117-Innocent IV. ii. 118–
Alexander IV. ii. 119-Urban, ii. 120.
SIGISMOND, cruel execution of, with his wife and chil
dren, i. 224.
SINTO, Religion, i. 109
SLAVERY, Chriſtianity moſt powerful means of aboliſhing.
i. 225, 6. ii. 26—though not pofitively forbidden by the
New Teſtament, ii. 27-Objections to its abolition,
ii. 27, 8. See Ranfom.
of Strangers, i. 73,74, 173, 6. See Strangers.
among the Greeks, dreadful circumftances attend-
ing, i. 181.
of Captives in War, i. 10, 216, 298. (See Priſoners
of War.)
the inftrument of political advantage, as well
as private wealth, previous to the 11th Century, i. 225.
SLAVES, diſtinct claſſes of, i. 226—their low eſtimation as to
moral worth, 1, 227; enfranchiſement of, i.
229, and n.
SMITH, SIR THOMAS, his obfervation on Slavery, ii. 30.
SOCIETY, coeval with the exiſtence of mankind, i. 21. Seg
Government.
SOLDIER no one can be, without a commiffion, i. 187.
SOLDIERS of Fortune, their origin, i. 311. ii. 299.
SOVEREIGNS, Obedience to, under Natural Law, i. 55, 86.-
Protectors of the Chriftian Religion, ii. 18.
Independent; cauſe and effect of the jealoufies
fubfifting between them, i. 275-280-Ranfom of, i. 305,
and n.-Feudal Connections between, prejudicial to their
independence, 370, 371, 4, 6. See Appeal.
Their inviolability, ii. 507-514-No conflitutional
remedy againft, ii. 510, 512. See Inviolability of S.
SOVEREIGNTY, what conftitutes, i. 393, 4. ii. 509.-Invio-
lability, part of its very being, ii. 507-512. See Inv.
SPONSIO, Cafe of Pofthumus and the Samnites referred to,
i. 186-Caſe of Robert Knollys, i. 289, 292.
STATE OF NATURE, what it is, i.6.-whether it ever exiſted?
i. 21.-firſt conſidered as the foundation of a fyftem of
Law, by Hobbes, i. 5.-Origin of the theory of, i. 5, 6,80.
4
STRAN-
civ
ALPHABETICAL TABLE OF
1
STRANGERS, how hoftilely confidered by the Greeks and
Romans, i. 173, 176, 182-(See Hofpitality)-by the
Welſh, i. 235.-under the Feudal Syftem, i. 234, 5
By the Nations of Europe from the 11th to the 15th
Century, i. 258, 274.This temper foftened by the
Chriſtian Religion, ii. 12, &c.
SUAREZ (See Law of Nations) - his opinion of the caufe of
the abolition of flavery, ii, 29-his writings not noticed
by Grotius, ii, 614-
SUBSIDY, Treaties of, their influence on the European Law of
Nations, ii. 295-314-Origin and principle of, ii. 295,6.
Early inftances of, by Henry I. of England in 1101;
ii. 296-King John, ii. 297.-Philip le Bel of France, ii.297.
Edward III. and Philip de Valois, ii. 297-Charles V. of
France, ii. 298.-Originated from Chivalry, ii. 298, 9-Po-
licy and propriety of, confidered, ii. 300, 1-Confequences
of, fee Great Company; Companies.
SUCCARIA, feemed well to underſtand the Law of Nations as
a fcience, i. 259: ii. 582. n.
SUMMUM BONUM, Definition of, i. 116.
SUPREME Power in a State, See Sovereignty.
SWEDES, Law of, to relieve in cafes of fhipwreck, ii. 342.
Swiss Confederation, particulars of its rife and progreſs,
ii, 274—6 - Subfidizing of their foldiery, ii. 299, 300.
T.
TAMERLANE, the dreadful flaughter made by, in his wars,
i. 215.
THADDEUS of Sueffa, Advocate for the EmperourFrederick II.
at the firſt Council of Lyons, his conduct and character,
ii, 62, 3, 5, 8.
THEODOSIUS, his divifion of the Roman Empire; the cauſe,
at leaſt the ſignal, of its deſtruction, i. 212, &c.-Reproved
by Ambrofe, Archbishop of Milan, ii. 41-43.
THOMAS of Canterbury, his capture of Du Guefcelin's bro-
ther during a truce, not acted upon as a violation of
the then Law of Nations, i. 312–314.
TOUR-
I
THE PRINCIPAL MATTERS.
CV.
TOURNAMENTS, introduced by the Emperour, Henry I
ii. 161.
TREASON, injuftice of confidering foreign enemies as guilty.
of, i. 183-in vaffals, i. 375, 6.
TREATIES, their effect in fupplying the place of general
-
maxims of juſtice, i. 237-Reaſons why the Barbarians
who deftroyed the Roman Empire could not profit by
Treaties, i. 237, 8-during the middle ages chiefly ec-
clefiaftical, i. 239, 240-their obfervance enforced by the
Pope's interdict, ii, 54.
annulled by the Pope's bull, excommunicating the
Sovereign who made them, ii. 104.
their influence on the Law of Nations in Europe
from the 11th to the 15th Ceutury, Cap. XV. ii.
p. 231-358-generally ftated, ii. 231–240.
their influence in the alienation of Sovereignty
and Dominion; by Treaties of Marriage, ii. 241. (fee M.)
of Sale, ii. 256. (fee S.)-by Bequeft-(fee B.) and Deed of
Gift (ſee G.) ii. 263.-by Treaties of Protection, ii. 265.
(fee P.)-Renunciation, ii. 368. (fee R.)-Confederation,
ii. 272. See Confederation, and the references there.
Auxiliary, their effect, ii. 291.-of Subfidy, ii. 295.
of common cauſe, ii. 315.-to render up outlaws, ii. 318.
with Powers not Chriſtian, ii. 321.-refpecting commerce,
ii. 337. See A. S. Q. C.
What is meant by the Term; all Deeds which
fettled any uncertainty or difficulty, ii. 231, 2.-unknown
to barbarous nations, and why, ii. 233.-Caufes which
increaſed written Conventions after the 11th Century,
ii. 235.-Effect of fuch Conventions, ii. 235, 6.-Various
forts of, ii, 236.-How far the particular rights fettled
by Treaty are the refult of the Law of Nations,
ii. 236, 7, 9.-No pofitive Inftitution or Convention law-
ful, according to the Chriſtian Law of Nations, if con-
trary to the principles of Chriftian Morality, ii. 237-9.
TREATIES
*
¿vi
ALPHABETICAL TABLE OF
TREATIES with Powers not Chriftian; prejudices againft,
ii. 321, 2.-Grotius's opinion on, ii. 322, 4-Coke's, ii. 325,6.
not entirely of modern growth, ii. 327-arofe
from pofitive neceffity, firft in the cafe of Chriftians and Sa-
racens, ii. 327, 8- and political interefts; as in Spain
with the Moors; ii. 328, 9, n.-between Saracens anɗ
Chriſtians, inſtanced in the Treaties made by the Kings
of Sicily, ii. 330.-Emperour Frederick II. ii. 330 -with
Abuffac King of Morocco, in 1230; ii. 331, 2 ;-between
the Chriftians and Muffulmen in the Eaft for mutual aid
againſt their own brethren, ii. 332, 33-between the Ca
Siph of Ægypt and King of Jeruſalem, in 1166; ii. 333-
Pope Lucius III. and Saladin in 1185.-ib.-the latter and
Guy de Lufignan, King of Jerufalem, ii, 333,4.-King of
Naples, Pope Alexander VII. and Bajazet, ii. 334.
with the African States, a peculiar inftance
of the power of Convention on the Law of Nations,
ii. 334, 5-with Algiers in 1686,-fome articles of,
ii. 335, 6.-Tripoli and Tunis in 1751, ii. 336.
TREUGA DOMINI; what; and why inftituted, ii. 21.-en
forced by Laws and Conventions, ii. 22, 23.
TRIBUTE exacted by the Northern hordes under their
Law of Nations, i. 218, 220, 1.-by the Danes and Nor
mans particularly, i. 221.
TRINITARIANS, Chriftians defignated by this term, ii. 141,
TRIUMPHS of the Roman Generals cruel and ungenerous,
i. 189.
TRUCE of the Lord, See Treuga Domini.
TRULLANEAN Council, whence fo called, ii. 128. n.
TRUTH, Obligation to, under the Law of Nature, 1. 86,
TURISUND, King of the Gepidæ, inftance of his genero-
fity towards Alboin, i. 233.
TURKISH EMPIRE, its acceffion to the European Law of
Nations, i. 163, 166, 8.
TURLUPINS, i. 109:
TZAR, See Czar.
VASSALS
THE PRINCIPAL MATTERS.
cvij
· U.-V.
VASSALS, how affected by the private wars of their Lords,
i. 353-Reſtrained from Marriage without confent of
their Lords, i. 369-Inftances of, in the Count of Pon
thieu and Duke of Burgundy, i. 369, 370-Vaffal to one
Lord might be Lord Paramount to other Feudataries,
i. 375-Privileges of Vaffals, i. 387, 8'; 393, 4.
VATTEL, his opinion on the precedency of Nations queft
tioned, ii. 363-his Reaſoning on the Inviolability of
Ambaſſadors, in States through which they paſs, how
far fupported by Cafes, ii. 556-564-his opinion as to
Mary Q. of Scots queftioned, ii. 592-Caufe and nature
of his work, ii. 625, 6-its excellencies and defects, ii.
626, 7.
VELLY Abbé, his account of the origin of the Brotherhood
of God, ii. 25.
VENICE, See Doge.
Republic of, when and why permitted to Rank with
Sovereigns, ii. 449, 450.
VENETIANS, why they receive Refident Embaffies, ii. 481.7.
VIBIUS VIRIUS, his execration of the Roman Triumphs,
i. 190. n.
VIDAME, office and origin of, i. 266.
VILLARET, his reaſoning on the Law of Nations, i. 281,
On the Subject of Ranfom, i. 299, 300.
VIRTUE, definitions of, i. 118, 119.
UNAM SANCTAM, the Bulle, fo called, its origin and effect,
ii. 98.
UNITARIANS, Mahometans fo called in Contradiftinction to
Chriſtians, ii. 141
•
VOLTAIRE, his account of the Erection of Pruffia into a
Kingdom examined, ii. 409-414.
USURY, not againſt Natural Law, i. 85.
W.
WALLACE, Sir William, his execution difgraceful to the
age-he lived in, i. 261.
WAR,
cviii
ALPHABETICAL TABLE, &c.
WAR, Legitimate, what? i. 12, 13; 187; 294; 339;
340; ii. 206, 8.
Laws of, among the Greeks, their cruelty, i. 178,
184.
Romans, i. 184. & feq.
from the 11th to the 15th Century, Cap.
$
IX. i. 264, &c: See Prifoners; Slaves.
how improved under the inftitutions of Chi-
valry, ii. 165; 178.
formal declarations of, ii. 206, 8. See Chivalry.
Private (See P.)
WARWICK, Earl of, the King-maker, his power, i. 363, 4.
WEISEMAN, Phil. Cafe of, on the violation of the Privilege
of a Daniſh Ambaffador in England, ii. 503-5.
WICQUEFORT, his Treatife de l'Ambaffadeur, caufe of his
writing, ii. 519. n. his propofition, denying the Sove-
reignty of the Hanfeatic League examined, ii. 280-
290.
WIGHT (Jerfey and Guernſey) Ifles, Kings of, ii. 418.
WINGS, (The) an old Romance, fo called, ii. 162.
X.
XANTRAILLES and Talbot, their mutual generoſity, ii. 171.
See Chivalry.
XERXES, inftance of his Magnanimity, i. 176. n. cauſe of
his Anger against the Athenians, ii. 496.
Z.
ZIZIM, brother to Bajazet, Cafe of his Capture and
transfer under the then Law of Nations relative to Ran-
fom, i. 319.
ZOUCH, a pofition of his as to the Inviolability of Sove
reigns, examined, ii. 594—6..
1
THE
THE
FOUNDATION AND HISTORY
OF
THE LAW OF NATIONS,
1 N
EUROPE.
CHAP. I.
IF
WHAT THE LAW OF NATIONS IS.
F we look through the hiſtory of Man, we
ſhall ſcarcely be able to find an inſtance of
two or three of the fpecies being gathered
together into fociety, without the obfervance
of fome Law.
The neceffity for Law in general, drawn
from the nature of mankind, and their ana-
logy with other parts of the Creation; if not
a felf-evident truth, has been fo well demon-
ftrated by a number of refpectable writers,
that it would be unneceffary to give the dif-
cuffion a place in this work. But the founda-
VOL. I.
B
- tion
2
WHAT THE LAW OF NATIONS IS.
tion and structure of Law; particularly of that
part of it which we propofe to ourſelves as a
fubject of enquiry; are queftions about which
there has been fo much difference of opinion,
but which it is yet fo effential to underſtand
with preciſion, that it will be right to exa-
mine them with care and attention.
The Sum of Mankind may be faid to be
compofed of independent Nations, Families,
or Individuals; and the Laws which govern
them may be viewed under two relations;
Either as they concern the Interiour of thoſe
Nations, or Families, to be obferved by their
different component members; Or as they
concern them in their Exterior; that is, in
their conduct towards one another in their
collective capacity; not as Individuals, but as
Nations.
The firft of thefe we call the CIVIL or
MUNICIPAL Law; as prevailing in a parti-
cular State, City, or Body Corporate; the laſt,
we call the Law of Nations; as prevailing
among the different Nations which, together,
make up the whole of the world.
1
5
The
WHAT THE LAW OF NATIONS IS. 3
The difference between thefe two Laws is
remarkable.
The one, whether it takes its rife from the
will of each Individual, fignified in formal
Convention to each other; or whether it pro-
ceeds from mere Cuftom, the date and origin
of which no man can tell; has always fome
common Sovereign Tribunal to expound its
meaning and enforce its decrees. The other
has no Tribunal whatever; no Judge to ap-
peal to but the reſt of mankind.
The confequence is fuch as might naturally
be expected; the one is for the moſt part,
well underſtood, and uniform in its opera-
tions; the other is often unſettled in its prin-
ciples, and as to its operations, generally un-
certain.
To fettle therefore, as far as a thing fo
fluctuating will permit, the true foundation of
this remarkable Law; what it is that renders
it binding upon mankind; the changes to
which it is liable; and the cauſes of thoſe
changes is the ultimate object of the work
before us. To enquire into its form and ap-
В 2
pearance,
WHAT THE LAW LAW
OF NATIONS IS
pearance, is the immediate fcope of the pre-
fent chapter. The Subject is by no means
without difficulty, notwithstanding the vo-
lumes that have been written upon it; and
the queftion, What conftitutes the Law of
Nations, or how it is that it obtains? has been
as differently anfwered, as it has been fre-
quently put. Upon the whole however, the
great points of difference concerning the mode
of its ftructure, feem to turn upon this;
Whether the Law of Nations is merely the
Law of nature as it concerns man, and no-
thing more; or whether it is not compoſed of
certain pofitive Inftitutions founded upon con-
fent.
顺
​The Lawyers and Philofophers of an-
tiquity; the Oracles of the Digeft; and in
modern times, Hobbs, Puffendorf, Burlemaqui
and others, (a) fupport the firſt opinion.
Suarez, Grotius, Huber, Bynkershoek, and in
general the more recent authors, declare for
the laſt.
(a) See much learning upon this in Taylor's Civil Law,
from Pa. 99 to 132. Quarto Edition,
The
1
WHAT THE LAW OF 1
NATIONS IS. 5
The manner in which the firft fet of writers
account for their fentiments, is by erecting
that famous Theory, by which Man in his
origin is confidered in a ſtate of the moft
favage independence; an inhabitant of woods
like the beafts of the Earth; like them the
poffeffors of a folitary den, and like them, at-
tending to no calls but thoſe of appetite.
$
This uncouth, but intereſting picture aroſe
firft perhaps in the imaginations of the Poets,
(not improbably of thoſe who united legiſla-
tion with poetry,) and from them was eagerly
adopted into more regular Syſtems of Jurif-
prudence. Accordingly, no mode of ex-
pounding the Spirit of Laws and Govern-
ment, has been more common than that which
traces every thing up to the Creation of Man;
or, in other words, to Man, as it is called, in
a State of Nature. This Theory, though often
ſtarted, and beautifully amplified by the an-
tient Poets, (b) feems first to have been
thought of as the foundation of a System of
Law, by Hobbs, in his famous Book called
(b) Particularly Lucretius. Lib. 5.
В 3
the
6
WHAT THE LAW OF NATIONS IS.
1
the Leviathan, in which there is fo much to
admire, and fo much to condemn.—It was
adopted, and confiderably enlarged by Puf-
fendorf, and inftantly approved of by writers
without number. The refult of their fpecu-
lations is, that man in fuch a ſtate, owing
obedience to none, and having no pofitive
Law to control him, trufts for the direction
of his conduct to nature alone: The in-
fluence which fhe has over him, and the mo-
tives which, diftinct from divine or human
inſtitutions, impel him to forbear from, or to
perform any particular action, are called the
Laws of Nature; (c) and whatever number of
men there may be within the ſphere of one
another's intercourſe, their conduct towards
each other, (while thus independent of civil
bonds,) proceeds folely under the government
of thefe Laws.
(c) Enimvero utrobique intellegimus propofitiones quaf-
dam immutabilis veritatis quæ actiones voluntarias circa bo-
norum electionem, malorunique fugam dirigunt, ac obliga-
tionem ad actus externos inducunt; etiam citra leges ci-
viles, et fepofita confideratione pactorum regimen con-
ftituentium.
Cumberland De leg. Nat. 6. 1.
When
4
WHAT THE LAW OF NATIONS IS.
When, however, civil Society came at laft
to be inftituted, Men divided themſelves into
ſeparate communities, and agreed to be go-
verned by particular poſitive inſtitutions, in
which many of the rights conferred by mere
nature were given up, for the better preferva-
tion of the reſt: but the Communities in
their relations with one another, having given
up none of theſe rights, they ftill continue to
be governed in all their public tranfactions, as
the individuals that compofed them originally
were; and thus the Communities of the world
remain in a ftate of Nature with refpect to
one another, and of courſe can follow no
other Law but the Law of Nature. Hence,
fays Hobbs, the Law of Nature admits of two
divifions; Firſt, as it is applicable to Men as
Individuals; Secondly, as it regards them as
collected into Nations. The laft is what is
called the Law of Nations, which is thus no-
thing more than the Law of Nature. (d)
Such
(d) De Cive, Cap. 14. Sec. 4. "Rurfus Lex naturalis.
"dividi poteft in naturalem hominum, quæ fola obtinuit
“dici Lex naturæ ; et naturalem Civitatum, quæ dici
"poteft lex gentium, vulgo antem Jus Gentium appel-
latur. Præcepta utriufque eadem funt," &c. &c.
B 4
So
8 WHAT THE LAW OF NATIONS IS.
Such is the train of reafoning adopted by
thoſe who contend that theſe two Laws are
exactly the fame with one another; and
the favourers of this ſyſtem are fo numer-
ous, and have exifted in times fo ancient,
that it would feem almoſt preſumptuous to
have any doubt of its foundneſs. The
opinions of the Authors of the Digest and the
Inftitutes, are all founded upon it; and
nothing is more common than to uſe the
two Laws in fenfes nearly fynonimous. (e)
"Law," fays Dr. Taylor, "must be either
"natural or infiituted, viz. fuch as God pre-
tr
So alfo Burlemaqui « Il faut donc dire que le Droit des
« Gens, proprement ainfi nommé et confideré comme une
«loi qui emane d'un Superieur, n'eft autre chofe que le
"droit naturel lui meme, non aux hommes, mais aux
"Peuples," &c.
Principes du droit naturel, 2. 6.
5.
(e) Quod naturalis Ratio inter Omnes homines con-
ftituit, id apud omnes peræque cuftoditur, vocaturque Jus
Gentium, quafi quo june omnes gentes utantur. Dig. 1, 2. I.
Jure Naturali, quod appellatur Jus Gentium. J. 1. 2. I.
Gaius alío, De acquirendo rerum dominio, holds that we
acquire Property in the Birds and Beafts which we take by
the Law of Nations; obferving that the Jus Gentium,
cum ipfo genere humano proditum eft. Dig. 41. 1. I.
$
66
Scribes
WHAT THE LAW OF NATIONS IS. 9
Scribes in the voice of Reafon, or ſuch as
"Man appoints by his Civil fanction: to which
"muſt we refer the Law of Nations? To
"the Law of Nature doubtlefs, of which it
"is a part: for if we confider its origin, it
"is the Law of Nature; if the object or
application of it, it is the Law of Nations.
"It is ftill the dictate of right Reaſon, ap-
“ત
plied to the wants of Societies. So that
"what uſed to be called fus Natura, be-
"comes Jus Gentium." (f)
Specious, however, as this reaſoning ap-
pears, and found as it may be allowed to be,
as far as it goes; it is probably not diffi-
cult to demonftrate that fomething more is
neceffary than a fimple view of the Law of
Nature, before we confider ourſelves obliged
to yield obedience, as to a Law, to thoſe
cuſtoms which govern the intercourſe of Na-
tions.
Whoever cafts his eye over the innumer-
able forms and particularities, which the States
of the World confider themfelves bound to
obſerve in certain fituations; the changes in
(f) Taylor's Civil Law, p. 128.
thofe
IO WHAT THE LAW OF NATIONS IS.
thofe forms; the partial or the general ob-
fervance of them; and the varieties of con-
duct which evidently fpring from pofitive
Agreement; can hardly be led to a firm belief
that the Law of Nature alone, points them
out for our regulation. The Law of Na-
ture is confidered befides, as immutable; im-
preſcriptible; and exiſting through all time ;(g)
(a point which we ſhall foon have occafion
to confider more at large;) but the difference
between the Law of Nations now, from what
it has been, muft at once overthrow the pofi-
tion. For example; it was part of the Law
of Nations formerly, to admit of the reduc-
tion of Captives to Slavery; and that upon
the ſuppoſed right of putting them to death:
Yet a Nation which in thefe times fhould
venture upon fuch acts of barbarity, would
not fail to draw down upon it, the execra-
tion, and poffibly the perpetual war of its
Neighbours. This conduct however is juf-
tified according to the law of nature, by all
Jurifprudential Writers: To confider it there-
fore as a breach of the law of nations ; or
to hold it out as matter of deteftation, becauſe
(g) Taylor's Civil Law, 129.
it
WHAT THE LAW OF NATIONS 16. 11
it is a breach of them; can only be founded
upon the fuppofition that the latter law is
very different from the former. It has in-
deed been well faid by Puffendorf, that the
right to do any particular thing, impofes
not upon us the neceffity for doing it; and
hence it may be argued that this abftain-
ing from the execution of priſoners in War,
is ftill agreeable to the Law of Nature, though
puſhed to its extent, that law might per-
mit us to do much more. But if we abftain
from this full exercife of the right, and that,
in conſequence of the law of nations, which
would be ſhamefully broken if we did not;
it fhews that the two laws are effentially
different; and if the one may be ſaid to be
only less in extent than the other ; it is
different, from the very circumftance of its
being lefs. (b)
How
(b) Vide Bynkerfhoek. Queſt. Juris Pub. « Sed mores
Gentium qui olim fuerunt et nunc funt, follicitæ diftin
"guendum eft; Moribus cenfetur, precipua pars Juris
Gentium."
Hence the opinion of Grotius, reafoning on the In-
violability of Ambaſſadors. « Bonum et æquum, id eft
merum Natura Jus patitur poenas exigi, ubi reperitur
1
}
"qui
12 WHAT THE LAW OF NATIONS IS.
How it came to be thus circumfcribed B
how the full force of the liberty enjoyed in
a ftate of nature, came to be oppoſed by
certain Inftitutions which are, or ought to
be, invariably obferved; are queftions not
fo eafily anfwered, except by acknowledg-
ing that Man has appointed this circumfcrip-
tion by his Civil Sanction; which Dr. Taylor,
in the paffage above cited, allows to be not
Natural but Inftituted Law.
In a State of Nature; that is, acting
under the Law of Nature alone; if it be
neceffary to make war, war is made with-
out any notice but the very act of hofti-
lity. Among Nations, (though doubts are
entertained by many on the foundneſs of
the point,) thofe who make war by fudden
ravages, are confidered as Robbers, and may
be puniſhed as fuch; and accordingly, from
the oldeft time, a folemn form which ftamps
a State with the terrible character of Enemy,
has been deemed neceffary before it can pro-
"qui deliquit; at Jus Gentium legatos, et qui his fimiles
« fide publica veniunt, excipit. Quare ut rei fiant Legati,
"contra Jus eft Gentium, Quo vetari multa folent, qua
Jus Nature permittit." De J. B. et. P. 2. 18. 4. 3.
66
ceed
WHAT THE LAW OF NATIONS IS. 13
ceed to acts of legitimate War. In a State of
Nature, if once in confequence of juft hofti-
lity, we are permitted to kill an Enemy; it
ſhould ſeem that the manner of doing it, was
indifferent; under the Law of Nations how-
ever, nothing is more exprefsly forbidden
than the uſe of poisoned arms. In a State of
Nature, it would appear, that whoever affifts
my enemy, though only to a certain point;
by the very act of affiftance, becomes my
enemy alſo and even under the law of
nations in other times, fuch doctrine was
held reaſonable; In the days of modern
refinement however, it is not confidered as a
breach of thoſe laws, nor a fufficient cauſe
for War, to lend aid to one State againſt
another, when bound to do fo by Treaty. (i)
:
In reaſoning upon many of theſe cuſtoms,
it would poffibly be a taſk not more unnecef-
fary than vain, to endeavour to trace them.
up to the law of nature. In many points
that law abfolutely withholds its decifion;
and leaves us often to chance, where prece-
dent is wanting, to determine upon a rule
(i) See more upon this point, when we come to
the Influence of Treaties on the Law of Nations.
by
14 WHAT THE LAW OF NATIONS IS.
จ
by which millions perhaps are to be govern
ed. For example; on the difcovery of un-
inhabited lands; though the law of nature
may preſcribe ſome act of poffeffion to thoſe
who wish to eſtabliſh themſelves there; it
cannot poffibly determine what ſhall be the
particular form to conftitute a legal pro-
perty, in the eyes of the reft of the world.
That form, it is left abfolutely to the law of
nations to fettle; and it may be any trivial
thing which chance, or accident, or caprice
may point out. Not only this, but immenſe
tracts of Land, which have never even been
feen; Seas and Rivers that have never been
explored, are often claimed to the excluſion of
others, merely on account of a partial difcovery
of them. Of the fame nature with this, are a
vaft number of Ceremonies, and maxims, all of
them forming part of the Law of Nations; but
wholly independent of the Law of Nature;
as, the particular forms of declaring War;
the diſtinguiſhing marks of Heralds, and
Flags of Truce, in order to fhew the pacific
intentions of thoſe who bear them; the
the pre-
cedency of different nations according to the
forms of their government, whether Imperial,
Monarchical, or Republican; the Ceremo-
nies
WHAT THE LAW OF NATIONS IS. 15
nies of Courts; the Credit attached to cer-
tain documents fuppofed to confer high pri-
vileges on thoſe who are furniſhed with
them; (as the Credentials of Ambaffadors ;)
the great immunities of thoſe Miniſters, (not
abſolutely neceffary for the fuccefs of their
miffion, but) agreed upon by different na-
tions; the proportion of Salvage allowed to
a nation that recaptures the property of
another, with whom there is no Treaty, from
a common enemy; all theſe, are furely the
effect of Convention (k) of fome fort or other;
and by no means pointed out by natural
right. "Natural Law," fays Bynkershoek,
"eſtabliſhes neither diftinction of perfons,
<<
nor property, nor civil government; it is
"the Law of Nations which has invented
"theſe diſtinctions, and renders all thoſe who
happen to be within the territory of a State,
"C
44
fubject to the jurifdiction of that State.
(k) “Ceſt le confentement de toutes les Nations de la
"Terre qui fait ce qu'on appelle le droit des Gens. Il
"tient le milieu entre le droit Naturel et le droit Civil;
"et eft d'autans plus confiderable que le dernier, qu'il ne
peut eftre changé ni alteré, finon du mefine Confentement
« unanime de tous les peuples."
6C
Wicquef. de l'Ambaffadeur, 1. 1. 27.
5
}
1
66
Reafon
16 WHAT THE LAW OF NATIONS IS.
' Reafon and Custom are the only Bases of
"the Law of Nations.” (1)
Of this opinion alſo, and in all its extent,
feems to have been a writer of great per-
fpicuity and comprehenfion of mind, though
his writings are feldom explored. I mean
Francifco SUAREZ, a famous Jefuit of
Grenada, in the fixteenth century, and long
time profeffor of divinity in the Univerſity
of Conimbro.
I fhall make no apology to the learned
Reader for fetting before him the following
of his poſitions.
+
Natural law, differs from other laws in
this; that other laws, conftitute of themselves
the turpitude or honefty of the things they
prohibit or inculcate; while Natural law,
always pre-ſuppoſes in the act or ſubject,
the turpitude which it prohibits, and the
honeſty which it inculcates; and therefore
we uſually ſay that a thing is forbidden by
(1) Bynk. de Foro Leg. Cap. 24.
*
this
WHAT THE LAW OF NATIONS IS. 17
this law, because it is bad, or commanded, be-
cauſe it is good. (m)
Now it is to be believed, that the Law of
Nations does not command or prohibit things
becauſe they are intrinsically good, or intrin-
fically bad; for fuch things belong properly to
Natural Law; and in this fenfe therefore the
Law of Nations is not comprehended in
Natural law. (n)
The Law of Nations differs in the firſt
place, and that very particularly, from natural
(m) Vide Fr. Suarez. De Leg. ac Deo Legiſlat. L. 2.
C. 7. S. 1. Imo in hoc differt lex naturalis ab aliis legibus,
quod aliæ faciunt effe malum quod prohibent; et neceffa-
rium vel honeſtum quod præcipiunt; hæc vero fupponit in
actu ſeu objectu, honeftatem quam præcipiat, vel turpi-
tudinem quam prohibeat; et ideo dici folet per hanc legem,
prohiberi aliquid quia malum, vel præcipi quia bonum.
See alſo other opinions to this purpoſe. Puffend. Droit
des Gent. L. 2. Ch. 3. S. 4.
(n) Concludendum igitur cenfeo, Jus Gentium, non
præcipere aliquid tanquam ex fe neceffarium ad honeftatem,
nec prohibere aliquid quod per fe et intrinfece malum eft,
vel abfolute, vel tali fuppofito Statu et conditione rerum;
fed hæc omnia pertinere ad Jus Naturale, ac Subinde in
hoc fenfu, Jus Gentium, non comprehendi Sub jure na-
turali. Id. 2. 17.
VOL I.
C
law;
18 WHAT THE LAW OF NATIONS IS.
た
​law; in fo far as it contains certain positive
precepts, the neceffity of which it does not
infer folely from the nature of the thing incul-
cated, by an inference drawn from natural
principles; and as we have fhewn that every
thing that is thus inferred, muſt be attributed
to natural law; fome other caufe for this ne-
ceffity muſt be fought for by the law of
Nations.
It differs in the fecond place, becauſe it
cannot be fo immutable, as the law of Na-
ture; for Immutability takes its origin from
Neceffity.
イ
​Hence laftly, it follows; that even in the
things in which the two laws appear to
agree, they are not exactly, and every way
fimilar. (0)
Such
(0) Differt autem primo ac præcipue Jus Gentium a
Jure Naturali: Quia quatenus continet præcepta affirma-
tiva, non infert neceffitatem rei præceptæ, ex fola rei natura
per evidentem illationem ex principiis naturalibus; quia
quicquid hujufmodi eſt, naturale eft ut oftendimus: unde
neceffe eft, ut aliunde oriatur talis neceffitas, &c.
Secundo differant confequentur, quia Jus Gentium, non
poteft effe tam immutabile ficut naturale, quia Immutabilitas
ex neceffitate oritur.
Tertio
WHAT THE LAW OF NATIONS IS. 19
Such is the opinion of the Philofopher of
Grenada, and he adds to it a flight enumera-
tion of thoſe points which form the ſubject of
the law of nations, but on which nothing is
decided by natural law. Moſt of them have
been mentioned above, and among them he
particularly takes notice of the privileges of
Ambaffadors (p), and the neceffity under
which the world is ſuppoſed to be by the law
of nations, and not the law of nature, to culti-
vate commerce. (9)
Thus much then with reſpect to thoſe who
favor the ſuppoſition of Hobbs and Puffendorf,
that Man rofe fuddenly from the Earth, or
dropped from the clouds, with all his Facul-
ties perfect, and beheld other beings around
him, of the fame fpecies, and in the fame
fituation.
Tertio hinc fit, ut etiam in his, in quibus hæc jura con-
venire videntur, non habeant omnimodæ fimilitudinem.-
Id. L. 2. C. 19. 3.
(p) Id. 2. 19.6.
(9) Jus naturale per fe, ad hoc (Commercium) non obli-
gat; potuiffet enim una Refpub. per fe vivere, et nolle
Commercium cum alia, etiamfi non effet inimicitia.➡
L. 2. 19.7.
C 2
But
20 WHAT THE LAW OF NATIONS IS.
But to thofe who lend their belief to the
tradition handed down to us by our Fathers,
in the moſt complete as well as the moſt
venerable monument of Antiquity extant in
the world; little reflection is wanting to ſhew,
that reaſonable doubts may be entertained,
whether mankind ever exifted in any ftate
where certain cuftoms were not known and
complied with; and if fo, the law of nations
muſt, even at all times, have been different
from the mere law of nature.
The hiſtory and origin of Government and
Civil Society, have been topics, ſo often
handled, and the fubjects of ſo much learned
and ingenious difcuffion, that it would be
little neceffary to touch upon them here. But
if we believe in the MOSAIC TRADITION,
and give our affent to that wonderful force of
corroborative circumftances which are fup-
plied by the hiftory and the face of the
Earth; we can hardly imagine the accounts
of the State of Nature above mentioned, to be
any thing more than the wild images of
Poetry, or at beſt an invention for the more
convenient deduction of certain reaſonings on
Law and Right.
Upon
WHAT THE LAW OF NATIONS IS. 21
Upon the fuppofition then that the world
was peopled by a fingle pair, and of courfe that
every man except the firft, muſt have gra-
dually advanced through a long and weak in-
fancy, to the full uſe of his faculties in body
and mind; it is hardly poffible not to believe,
that Government and Society (of what fort is
not here the enquiry) is as old as the world
itſelf. And however foon the emigration of
children from their fathers, or of particular
families from their community, may have
taken place; ftill, the exiſtence of certain
customs and ceremonies, and even of rules
and laws, muſt be fuppofed coeval, or nearly
coeval, with the exiſtence of mankind.
This latter confideration, is what I do not
recollect to have ſeen in any of thoſe theories
which make a difference between the laws of
nations and of nature; nor is it offered as
conclufive argument, but merely as ftrong
collateral evidence, the weight of which muft
in every man's mind depend upon the in-
clination of his opinion with reſpect to the
manner in which the world was peopled.
C 3
So
122
WHAT THE LAW OF NATIONS IS.
So ſtrong was the impreffion with GROTIUS,
that the law of nations was the custom of
nations, exclufive of the dictates of nature;
that a writer of great weight (r) has imagined
him to have puſhed this theory too far, and to
have rejected the interpofition of natural law,
more than was reaſonable.-And indeed in
the following fentiments, we may fuppofe
him to mean that the States of the world
form one great federal community, which has
actually determined upon one common, de-
finite Code of Laws for its government.
"As the laws of every State," fays he,
"have a view to the particular intereft of that
"State; So among the States of the world,
"or the greater number of them, certain laws
cr
may be agreed upon (ex confenfu) which
"have a view to the intereft, not of fingle
"Communities, but of the great whole; and
"this is what is called the law of nations as
"often as we diftinguish it from the law of
"nature.'
?
Again, "Whenever we obferve a fettled
"maxim put in practice by numbers at dif-
(r) Vattel in pref.
ferent
WHAT THE LAW OF NATIONS IS. 23
"ferent times and places, we muſt attribute
"it to fome univerfal caufe; which in the
fubject before us, can only be by making it
"flow immediately from natural principles;
or the common confent of the world.
The
“
one points out what is the law of nature;
the other what is the law of nations; for it
"follows of courſe, that what is not deducible
“ at once by reaſon, from certain fixt prin-
ciples, and yet is univerfally obſerved; muſt
"derive its force from voluntary confent.
"have therefore been careful," continues he,
CC
I
to diſtinguiſh the law of nations from the
"law of nature, as well as from the civil
"law." (s)
In this opinion, the Philofopher of Delft,
may be thought to have gone too far; fince
though there can be little doubt but that Con-
vention enters into the compofition of the law
of nations; it can hardly be denied that there
is much force in the oppofite Theory; and
though the tranfactions of nations are go-
verned by cuſtom in a vaſt variety of points;
(s) Prolegom. Sec. 17, 41, 42.
CA
yet
24
WHAT THE LAW OF NATIONS IS.
yet in the beginning, and even now, in affairs
that are without precedent, above all, in points
of general duty and conduct, they can have
nothing to follow but fuch laws, as individuals.
not connected together in civil society are bound
to obferve. (t)
Steering therefore equally clear of the in-
accuracy of the Roman Lawyers, and fome
modern authorities; and this opinion of
Grotius, that the Law in queftion is Inftituted
Law, and that alone; we ſhall not perhaps err
much in inclining for the prefent, to the more
recent Sentiment, that although the Law of
Nations is to look for its principles to the Law
of Nature, and Sovereigns are to be governed
in their general line of conduct, and in all par-
ticular cafes that are new, by the fame prin-
ciples as would govern independent indivi-
duals; Yet, that many cuftoms having been
adopted, and many maxims agreed upon, we
are to look to them, in thofe cafes where they
prefent themſelves, for the interpretation of
(t) What that law is, we fhall enquire more at large in
a future chapter.
the
WHAT THE LAW OF NATIONS IS. 25
the principles. (u) I ſay, inclining for the pre-
fent, becauſe we mean hereafter to enter upon
a full difcuffion of the Law of Nature, and to
endeavour to fettle more accurately than has
hitherto been done, what we are to underſtand
by it, and under what modifications, when we
fpeak of it as the foundation of the Law
of Nations.
Thus then the law of nations
may be faid
to be constructed in the fame manner with
various parts of other laws, which are not
written, but derive their force abfolutely from
Equity and Cuftom, (x) of which, a very
great proportion of the law of this realm,
(furely far different from the mere law of na-
ture) is an illuſtrious example.
There are indeed caſes perpetually happen-
ing, in which various modes of action preſent
themſelves, all equally recommended by Na-
ture and Reafon; and in which, it is not of
(u) In the fame manner as (with us in England) it is an
Act of Parliament which prefcribes the general terms of
a law, but it is the Courts of Juftice which are charged
with its interpretation; and the Act, and the interpretation
(in the caſes that have been actually decided) taken together,
form the law.
(*) See Grot. de fur. Bet. P. 1. 1. 14. 1.
fo
26 WHAT THE LAW OF NATIONS IS.
fo much confequence to determine upon any
one of them from a thorough conviction of its
fuperiority; as that fomething definite ſhall
be determined upon. In thefe cafes, it is evi-
dent that if nature and reafon recommend
them all; the ſelection can be only made by
the fanction of poſitive law. The end is pointed
out by the one; the means are adopted by
the other; the principles are founded in
reafon; the application, is abfolute inftitution;
fo that the whole together, form a compofition
of the laws of nature, and the laws of man.
I have alledged," fays Bynkershoek, (upon
the Inviolability of Ambaffadors) "whatever
reafon can adduce for or against the quef-
tion; we muft now fee what is really to be
determined; what Custom will have fettled,
will carry it without doubt; fince it is on
Cuſtom that the law of nations is founded ;
(y) and indeed whatever may be the definition
of this law, we muft always return to this;
that, that which reafon dictates to the people
of the world, and that which they obferve in
confequence of a compariſon they make of
the things which have happened, form the
(y) Bynkerſh, De For. Leg. C. 7.
fole
WHAT THE LAW OF NATIONS IS.
27
fole law for thoſe who have no other to
follow. If men only make uſe of their reaſon;
reaſon will but adviſe certain things to be ob-
ferved by them; which being thus obſerved, ſo
as to become eſtabliſhed Customs, people are
under a reciprocal obligation to comply with
them, without which we cannot imagine
either War, or Peace, or Alliances, or Em-
baſſies, or Commerce." (z)
Such is the language of one of the ableft
writers on this part of law, who faw clearly
how different the modifications of certain
Cuſtoms must render the mere law of nature.
The ſentiments contained in the ſmall Treatife
which he gave to the world, were ably de-
veloped by WOLF, (a) and put into more pɔ-
liſhed form by VATTEL; from whom if we
differ at all, it will only be in endeavouring
to give ſomething more definite and binding
even than this affemblage of the laws of Na-
ture and the laws of Man, as the real founda-
tion of the Law of Nations.
In this ftage of the
argument, it may not
be improper to take a view of an objection,
(z) De For. Leg. C. 3. (a) Jus Gentium.
whofe
28
WHAT THE LAW OF NATIONS IS.
whofe force, if allowed, would overturn the
whole of what has been faid. It is to be
found at large (though it was thought of long
before by Suarez), (b) in Dr. Taylor's learned
Treatife on the Civil Law, in which he has
occafion to conſider the queſtions before us.
The following is the Sum of his reaſoning.
The Law of Nature is divided into Abfolute
and Hypothetical. The one obliges abfolutely,
all perfons, at all times and in all places, for it is
immutable; the other only conditionally; that
is, fuppofing fuch and fuch conditions to
exift; which, if they do not exift, nothing is
done. But if they are juſt and reaſonable in
their own nature when they do come to exiſt,
the obligation to obferve them operates as
ftrongly, as the obligation of the Law of Na-
ture did in its abfolute force. (c) This rea-
foning is thus illuftrated by Cafes.
The Law of Nature recommends the ad-
vantages of Society. When therefore Society
is formed, and not before, all the means of
(b) De Leg. ac Deo Leg. 2. 18.
(c) Taylor's Civ. Law. Quarto Edit. 129.
main-
WHAT THE LAW OF NATIONS IS. 29
maintaining it, and all the confequences that flow
from it, are as much the Law of Nature, that
is, the Law of Nature Hypothetical, as the
rules before it, were the rules of the Law of
Nature abfolute. (d) So alfo with Contracts;
the obſervance of which is not in confequence
of any new Law, but merely that an eternal
and neceffary Law, has now a Scene in which
it may exert its operations. (e)
When writers then tell us of a fecondary
Law of Nations, which in many refpects is
totally different from the primary one; this is
the true and natural obfervation upon that
feeming diſagreement. If I am directed to
cultivate Society, I find there can be none
without a feparation of property; Property
introduces difputes; difputes are the occafion
of war; war brings on Captivity; that again
Slavery; till we come by the benefit of
manumiffion to the recovery of our natural
Rights.
This ſcheme has led people to imagine that
the fecondary law of nations was a kind of con-
(d) Taylor's Civil Law. 129.
(e) Id. 130.
ventional
30 WHAT THE LAW OF NATIONS IS.
ventional, voluntary law, diftinct from the law
of nature. But though the natural equality of
mankind, and the admiffion of Slavery; the
community of goods, and the introduction of
property; and many other cuſtoms compared
with natural right, feem in oppofition to one
another; yet, if the rights and duties of this
new scene, are not incongruous with the law of
nature; what is called the fecondary law of
nations has really no existence; nor can that be
faid to be introduced by pofitive or arbitrary con-
tracts, or by voluntary confederacies, which is
fairly the preſcription of right Reaſon. (f)
Hence, all the obligations which ariſe from
what is called the Jus Secondarium, were vir-
tually laid upon us before, but could never be
known till fomething called them forth. Thus
theft is contrary to the law of nature, though
it could not be known till after the inftitution
of Property; for the doctrine of "Alterum ne
"lædas" lofes no force; So that when the
Civilians fay that Theft is baſe in its Nature,
they mean that it would be jo, after Property
was once introduced. (g)
(ƒ) Taylor's Civil Law. 130.
To
(g) Id. 131. See alfo Suarez de Leg. ac Deo Legiſlat.
L. 2. C. 18. Nam multa funt de jure naturali quæ non
obligent,
¡
WHAT THE LAW OF NATIONS IS. 31
To this reafoning little can be anſwered;
ſince if taken in one light, it cannot apply to
the queſtion before us, and therefore requires
no anſwer; if in another, it is every where
contradicted by fact̃. If it means that men
have really no view to rule and precedent in
their conduct towards one another; it would
be uſeleſs to endeavour to prove that they
had, when rule and precedent every where
preſent themſelves to notice. But if it means
merely to trace all Laws up to their fource
and reaſon, and to affert that they are Laws
of Nature, becauſe the nature of man makes
him propoſe fome advantage to himſelf in all
his conftitutions; there can then be no quef-
tion between us. In that view of the fubject,
all the laws that ever exifted, may be deemed
laws of nature; and the laws of a particular
State, a particular Diſtrict, nay even of a par-
ticular Society or Club of men, may be faid to
be laws of nature, as well as the laws of
nations: For they are all founded upon the
natural inclination to uphold Society; they
obligent, nec locum habent, nifi aliqua fuppofitione facta.
Ut præceptum non furandi, non habet locum, nifi facta
divifione bonorum et dominiorum.
5
are
32
WHAT THE LAW OF NATIONS IS.
are the means of maintaining it, and the confe-
quences that flow from it, which to uſe the
language of the argument are the laws of
nature.
To thoſe however who do not regard the
queftion in this extenſive point of view, but
merely enquire whether the particular form
in which the principles of natural duty are
applied, muſt not have the civil fanction of
men to ſtamp it with the authority of law
this reaſoning will appear, if not nugatory, at
leaft gratis dictum. (½)
As therefore the principles of all civil and
municipal laws, muſt be founded in natural
reaſon, but derive the form and manner in
which they are brought into uſe, from pofitive
inftitutions; So alſo the law of nations muſt
put in force the dictates of nature, in ſome
known mode agreed upon by all who conform
to them. The only difference is, that in the
(b) It was Gibbon's judgment of Dr. Taylor's work,
that it was of amufing, though various reading; but could
not be praiſed for philofophical preciſion.
Dec. and Fal. Ch. 44. Note. 132.
one
WHAT THE LAW OF NATIONS IS. 33
one cafe, it is individuals who are called upon
to ſettle the mode; in the other, it is whole
nations, acting through the organs of their
governments; that in the one, almoſt every
thing that can exercife the judgment of an
individual in his various relations, is fettled
for him by written law, or by precedent;
while among States, (from their comparatively
little intercourſe, and the want of a common
Sovereign,) much is left without precedent,
wavering, as accident, or whim, or the vary-
ing ideas of natural juftice, may direct.
Upon the whole then, the account of the
Law of Nations, is not greatly different from
that of the Municipal, which by all writers is
confidered as pofitive law. For both the one
and the other look for their principles to
Reafon; for their application, to regular Infti-
tution; and hence a writer of the laft age has
faid, not improperly, that the Law of Nations.
holds the midway between civil law and the
law of nature. (i) When however they come
(i) Wicquefort de l'Ambaſſad. 1. 1. 27. Suarez alfo calls
it medium inter naturale jus, et humanum, et priori ex-
tremo vicinius. L. 2. 6. 17.
VOL. I.
D
to
34 WHAT THE LAW OF NATIONS IS.
I
to be broken, the difference is far more fe-
rious. The breach of municipal law is at-
tended only by the punishment of the of-
fender; (the law remaining ftill in force,
ftrengthened perhaps by the very infraction :)
the breach of the other, can only be remedied
by the refuſal of thoſe who are injured ta
comply with it any longer, and the law itſelf
is totally deſtroyed.
CHAP.
OBLIGATION OF NATURAL LAW. 35
CHAP. II.
OF THE OBLIGATION OF NATURAL LAW.
BUT
a very material queftion prefents
itſelf now for difcuffion, which muſt be fatis-
factorily diſpoſed of before we can proceed
farther. Although it may appear ſettled, that
the Law of NATIONS confifts of the Law
of NATURE, modified by the exprefs or the
implied confent of Nations; ftill if it fhould
happen that the particular fets of actions and
offices which compofe what is called the
moral ſcience, and which are exprefsly faid
to take their rife and obligation from the
Law of Nature, fhould not always refemble
one another: If different philofophers, pro-
ceeding as they think from this fame Law,
fhould be found to have very different ideas.
of duty; and nations in confequence have
adopted in the fame fituations, very different
modes of conduct: If this, I fay, fhould
happen, we muft I think be driven to con-
fefs, that the Law of Nature itſelf, is a very
imperfect foundation for any Law which is
D 2
fup-
1
{
36
OBLIGATION OF NATURAL LAW.
fuppofed to be definite and certain; and which
on account of that foundation, and that alone,
it is affirmed, is to govern all the States of
the World.
A very able writer upon the ſubject of
Laws, conceives the Law of Nations to depend
upon the principle, "that different nations
ought to do as much good to one another in peace,
❝ and as little harm as poſſible in War, without
prejudicing their real Interefts." (k)
*r
66'
As a great fundamental principle, or out-
line of the Law of Nations, I have no kind
of doubt of the foundneſs of this propoſition;
but when we come to a detailed fcheme of
duties, it is obvious that much more is necef-
fary to render it definite, fince it is obvious
that a queftion may be immediately ſtarted,
namely, what is it that conftitutes our real
Intereft, and who is to judge?
Now could the Natural Law point this
out with certainty to every man's heart and
comprehenfion, there would be little or no
(k) Montefq. De l'Efp. des Loix. 1. 1. ch. 3.
difference
OBLIGATION OF NATURAL LAW. 37
difference of opinion concerning it; for the
Natural Law, as is properly and uniformly
laid down, is univerfal and immutable. Yet we
all know the immenfe diverfity of fentiment
concerning real Intereft which there is, and
muſt be, where there is no common pofitive
Religion to decide upon it with authority ; and
in ſpeaking merely of a natural Law, all
idea of fuch a religion muſt be left out of the
queſtion. (1)
Even with a poſitive Religion, much dif-
ference of opinion has ariſen upon various
points of the Law of Nations. For example;
one of the reaſons which produced the Trea-
tife of Vattel, was a revolting affertion of
Wolf (whom he owns for his Maſter) that
the use of poisoned arms, was legitimate in
war. (m) Some of Vattel's own poſitions in
other parts of his fubject, feem to me, on
his own principles, to be equally capable of
conteſt. For example, he founds the natural
obligation of Nations to cultivate commerce,
folely upon its utility? and though he owns
(1) See Note c. page 6.
(m) Vattel Dr. des Gens. Prelim. 13, 14.
D 3
that
38 OBLIGATION OF NATURAL LAW.
that one nation may refuſe to trade with the
reft, yet if it do fo without good reafon, he
affirms it will be guilty of a breach of duty. (n)
But if utility is the fole cauſe of this obli-
gation, it muſt be obvious that its univerfality
muft entirely depend upon this, that all man-
kind confider commerce in the fame light
with Vattel, which is known not to be the
cafe. (0)
Who then can decide with clearneſs upon
the Law of Nature itſelf, when extended into
all the minute ramifications of a particular
Syſtem, upon which all mankind are by no
means agreed?
A great and very old queſtion therefore
arifes, concerning the OBLIGATION of
NATURAL LAW as far as it is fuppofed to tie
us down to the obfervance of one, certain, and
detailed fcheme of duties, and no other: In
other words to the purfuit of what particular
Nations call GOOD, or the rejection of what
(n) Vattel Dr. des Gens. Prelim. 1. 1. ch. 8.
(0) Suarez, as quoted in the laſt Chapter, (Note q.
p. 19.) afferts in pofitive terms, that there is no obligation
to cultivate commerce at all.
2
they
OBLIGATION OF NATURAL LAW. 39
7
they call EVIL. If this cannot be ſhewn, we
have as yet obtained abſolutely nothing, con-
cerning ONE FIXED foundation, for a Law of
Nations, binding, ex vi terminorum, upon all
the Nations of the world; and as moſt of thoſe
learned men who have acquired fuch deſerved
reputation for their refearches upon the fub-
ject, have generally taken this part of it for
granted, there may be yet fomething wanting
to the perfection of the Science.
In the preſent Chapter therefore I fhall
endeavour to examine, the force of the
OBLIGATION which many judicious and
virtuous perfons have afferted we are all of
us under, to obferve invariably one, particular,
and certain fet of Cuſtoms, from the com-
mands of nature alone. And if it fhall be
found that this obligation is at beſt but a
weak one; or that upon the fame principles
which are ſuppoſed to recommend it, very
different fets of Cuftoms may be, and are pur-
fued with equal zeal; it is clear, I think, that
with ſuch a ſort of obligation, we can arrive
at nothing determinate with reſpect to the
Law in queſtion. Should this be the Cafe
therefore, I fhall afterwards endeavour to
D 4
come
40 OBLIGATION OF NATURAL LAW.
1
come at what is likely to be the truth; and to
point out whether what is commonly called
the LAW of NATIONS, is binding upon all
the World, or only upon particular Sets or
Claſſes of Nations, as they fall into different
divifions of it, obferving different Religions
and purſuing different fyftems of Morality.
Preparatory to fo important an enquiry,
and in order to clear the queftion in the out-
fet from ſeeming objections, it will be necef-
fary perhaps to ftate in form one or two
obvious propofitions; nor fhall I be at all
afraid of the danger of repetition, provided
at the expence of being prolix, I may be
certain of being perfpicuous; ſince all who
have attended to fpeculations of this fort,
muſt have perceived how much difficulty has
often been occafioned, by the writer's taking
for granted that certain things are already
underſtood, and that the exact queftion is
already known by the reader.
That we may therefore the more eaſily
underſtand the following confiderations, it
will perhaps be right to make a diviſion of
the Law of Nature, (which is a term of im-
menfurable
1
OBLIGATION OF NATURAL LAW. 41
menfurable extent) in order to come at once
to what is the exact point of our enquiry.
The Laws of Nature then, may be divided
into thoſe which concern animate and inani-
mate Being; the firſt of which only, is the
fubject of our fpeculation.
The laws which govern this again, may
be divided into Inftincts and Reaſon.
Inftinct without reaſon, is the law for the
Brute Creation.
Inſtinct and reafon together, form the law
for MANKIND.
Thus, Man has as it were two natures. One
in common with Brutes; inafmuch as he
obeys the laws of Inftinct; another pecu-
liarly his own, inafmuch as he conſults the
laws of reafon.
Between theſe two, there is this charac-
teriſtic difference; that inſtinct acts with
irreſiſtible power, while reafon only directs
or adviſes, and may be perpetually oppofed.
Hence,
5
42 OBLIGATION OF NATURAL LAW.
Hence, under the one, we are a blind and
paffive; under the other, we are a free
agent; and it is to thofe Cafes alone which
come under the direction of reaſon, (that is,
to Cafes which admit of free agency,) that
our enquiries are directed.
Hence then upon the whole, the point
before us, is to aſcertain if poffible, whether
the duties and actions which we denominate
Moral, (as that a man fhall love his neighbour
as himſelf,) can be faid to be obligatory,
from what is called the Natural Law alone,
confidered as diftinct from the pofitive inftitutions
of man, (in other words, from Expediency or
Utility,) or the REVEALED commands of the
Deity.
A vaft body of authorities, venerable for
their age, their learning, and their powers
of argument, hold the affirmative of this
Queſtion. At their head, appear the whole
band of STOICS, and the followers of
SOCRATES and PLATO of ancient times;
and among the Moderns, the names of
SUAREZ, PUFFENDORF, HOOKER, LOCKE,(p)
(p) On Government.
CUM-
OBLIGATION OF NATURAL LAW. 43
CUMBERLAND, BURLEMAQUI, VATTEL
TAYLOR, and above all, the profound
BUTLER.
Theſe again are oppofed by another great
body of authorities, which are no doubt well
known to the reader; and which, however
they may differ from them in the main points
of their philofophy, are not to be neglected
totally, or without diſcrimination. The philo-
fophers I mean, are the PYRRHONIANS, the
EPICUREANS, and the SCEPTICS of an-
tiquity; the Difciples of HOBBS, SPINOSA,
MONTAIGNE, DES CARTES of later days;
and ſeveral others who are remembered
within our own age. We proceed to enquire
into the difference between them.
The opinions of the first mentioned claſs
of writers are founded upon the following
argument.
Whatever is diſcovered to be the practice
of the whole, or nearly the whole of man-
kind, and to proceed upon a certain known,
general, and fixed principle, muſt be in con-
fequence
44 OBLIGATION OF NATURAL LAW.
1
1
fequence of fome law, which may fairly be
called the law of man's nature. (q)
Now there is an univerfal principle of
action in the hearts of all mankind, which
is to feek happineſs as focial and benevolent
beings.
This may
be drawn from a review of the
internal frame or conftitution of man, which
leads him, when unbiaffed by his own par-
ticular intereſt, to wish the happineſs of all
his fellow-creatures; to approve of virtuous
actions wherever he obſerves them, and to
deteft their oppofite vices.
tion, and deteftation, are
This approba-
impofed
impofed upon
him by a certain internal, great, and regu-
lating principle, called CONSCIENCE or
reflection; which, though his paffions may
lead him often to rebel against its power, it
is nevertheleſs impoffible wholly to blind or
to deſtroy.
This great principle, adjuſting and cor-
recting all inward movements, ought to pre-
(q) Grot. J. B. p. 1. 1. 12. Puffend. 1. 6. 10. & 5.
3. 10. Barbeyr. Pref. to Puffend. p. 14. Hooker Ecclef.
Pol. B. 1. Sec. 8. Vattel. 1. 27, 28.
fide
OBLIGATION OF NATURAL LAW. 45
1
66
fide over and govern them; It is the inftru-
ment by which man is to be fhewn what his
real nature leads him to; and obligations to
the practice of virtue deduced from this re-
view of nature,
are to be confidered as an
"appeal to each particular perfon's heart, and
“natural confcience; as the external fenfes are
appealed to for the proof of things congnizable
by them.
And thus, allowing the inward
feeling SHAME, a man can as little doubt
"whether it was given him to prevent his doing
"SHAMEFUL actions, as whether his eyes were
given him to guide his ſteps.” (r)
CC
te
CC
66
The truth of this opinion may alſo be
drawn, from a compariſon of the nature of
man as reſpecting felf, and as refpecting
fociety; by which it will appear
"that there
(r) Butler's Second Serm. on Hum. Nat. Serms.
p. 26, 27, 28. Barbeyr. Pref. to Puffend. p. 4. Il ne
faut prefque pas fortir de foi meme, ni confulter d'autre
maitre, que fon propre Cœur. Burlemaqui goes ſo far as
fo
to deduce Virtue and Juſtice from mere Sentiment and
Taſte, which, ſays he, foreſtal reaſon. Dieu a donc jugè
apropos d'employer auffi cette voye à légard de la conduite
morale de l'homme; et cela en imprimant en nous, un
Sentiment, un gout de Vertu & de Juftice, qui previent
en quelque forțe le raifonnement.-Du Droit Nat 2, 3, 5.
66
are
孕
​46 OBLIGATION OF NATURAL LAW.
&C
are as real and the fame kind of indications
"in human nature, that we are made for
"fociety and to do good to our fellow-crea-
પ
tures; as that we are intended to take care
"of our own life and health and private good;
"and that the fame objections lie againſt the
; are
one, as againſt the other." (s) For though
crimes are often committed againſt ſociety; ſo
are they often committed againſt ourſelves,
by intemperance and other exceffes; and as
there is really no fuch thing as abfolute felf
hatred; fo there never was an inſtance of
ill will, for its own fake, againſt mankind.
Moreover, our paffions and affections, con-
fidered merely as private by ourſelves
in fact, public paffions and affections alfo.
Thus, the defire of eſteem from others; the
love of fociety; (confidered as diftinct from
the good of it ;) and indignation againſt fuc-
ceſsful Vice; thefe are public paffions; relate
to others; and lead us to regulate our beha-
viour fo as to be of fervice to our kind. And
thus the general difpofition of our inward
frame, is calculated to do good to our fel-
lows, as well as to ourſelves; and any thing
(4) Butler's First Serm, on Hum, Nat. p. 5, 6,
contrary
OBLIGATION OF NATURAL LAW, 47
contrary to this in either cafe, is not to be
confidered as legitimate, but as the effect of
mere ungoverned paffion. (t)
That this fort of ungoverned paffion,
(though apparently natural,) is in reality
contrary to nature, is diſcoverable firſt, from
an attention to the various meanings of the
word Nature; and afterwards by fixing the
true one, which forms the ſubject of the ſpecu-
lation. For it does not mean merely, any
principle in man, without regard either to
the kind or degree of it; (ſuch as the paffion
of anger or the affection of a Father for his
children, which may both be called natural:)
neither does it mean merely thoſe paffions
which are ſtrongeſt in a man, (in other words
his ruling paffion,) which is often and juftly
enough put for the nature of ſome particular
man; in which light nature may be vitious,
as well as virtuous. (u) But it means, that
reaſonable, reflecting, nature, which teaches
men to do that which SELF demands of them,
after a view of all its confequences; by which
it will never fuffer them to prefer a mere
(t) Grot. D. J. B. P. Prolegom. 6, 7, 8, 9.
u) Butler's Serm. p. 33, 34.
momentary
1
48 OBLIGATION OF NATURAL LAW.
}
momentary gratification, at the expence of
future deſtruction; but fomething that fhall
be gratification on the long run, all ge-
neral confequences confidered as much as
they can be, which therefore ought to embrace
the intereſts and the rights of others.
This is the nature which is meant by the
fpeculation; and in this point of view, what
in common ſpeech may be allowed (though
inaccurately) to be natural; may in the end
turn out to be quite the reverſe. Thus,
though a brute ruſhing into a fnare for the
fake of a bait, may be faid fairly enough to
purſue his nature; fince it was natural for
him to wish for the bait, and it was not in
his nature to foreſee the confequences ;-Yet
it is not fo with man; who being endowed
with reaſon, and governed magifterially by
the principle of reflection or CONSCIENCE,
which without being confulted, approves or dif-
approves of a thing, and renders man a law unto
himſelf, (x) is bound to give up preſent grati-
fication in order to avoid certain ruin; and
fhould he chance not to do this, fuch an
(x) Butler. Serm. p. 36, 37..
action
OBLIGATION OF NATURAL LAW. 49
action is nevertheleſs evidently disproportionate
to ſuch a reaſonable nature, and therefore in
the ſtricteft fenfe, is unnatural.
But as the natural paffion to gratify ſelf-
love upon the long run
the long run; (that is, the duty
to avoid preſent pleaſure, for future preſerva-
tion,) would incline a man to do this, how-
ever ftrong his natural paffion for pleaſure
might be on the other fide, and even although
it abſorbed all others; it is evident that there
is a difference between a real and reafonable
felf-love, and that which is only deceitful;
that is, mere paffion which looks not to con-
fequences. This difference, not depending
upon ſtrength, or degree, muſt be a differ-
ence in kind; and as, if ſuch paffion as has
been defcribed, prevail over felf-love, it is
unnatural; (difproportionate,) while if real
felf-love prevail over paffion, it is natural;
it is manifeft that the true and reaſonable felf-
love, is a fuperiour principle in nature to
mere blind paffion. Hence therefore, though
it may be borne down by it, it is not the leſs
fuperiour in its nature on that account; and
the power of paffion muſt be conſidered as
ufurpation only, in the fame manner as in
VOL. I.
E
civil
50 OBLIGATION OF NATURAL LAW.
civil fociety it fometimes happens, that a
rebel who is more powerful, ufurps the
Government of a lawful Sovereign; who
however is not the lefs a lawful Sovereign
on that account; neither is power confidered
as authority. (y)
As therefore the idea of a civil conftitution
implies united ſtrength, and various fubordi-
nations, under one head; namely, that of
the Sovereign; and if you leave out the
fubordination, though all the members re-
main, yet the idea of civil government is
deftroyed; fo reaſon, appetite, and paffion,
confidered without connection or arrange-
ment, do not give the idea of human na-
ture; but that nature confifts in a certain
arrangement, or relation which all theſe parts
bear to one another; under which the paf-
fions or appetites, are to be confidered as
fubordinate to reafon and confcience. And
as a civil government may be deſtroyed by a
rebellion, the fuccefs of which does not ren-
der it legal; fo alfo may the conftitution of
nature; in both cafes, the nature of what
(y) Butler. Serm. p. 39, 40, 41.
ought
OBLIGATION OF NATURAL LAW. 51
ought to be, remaining the fame, notwith-
ſtanding what is.
Hence, exclufive of revelation, Man is not
a Creature left by his maker to act at ran-
dom, and live at large up to the extent of
his natural power, as paffion, or humour
ſhall direct; but from his make, conftitution,
or nature, he is in the ftricteft, and moſt
proper fenfe, a law unto himſelf: he has the
rule of right within, all that is wanting is,
that he honeſtly attend to it. (x) And
therefore enquiries after any general rule by
which our actions may be denominated good
or evil, though in many reſpects they may
be of fervice, are of little with refpect to this;
fince any plain honeſt man before he engages
in any courſe of action; if he only aſk him-
felf whether what he is about to do is right
or wrong, good or evil, will be able to answer
the question agreeably to virtue and truth, in
almost any circumstance. (a)
(z) Butler's Serm. 45, 46. et infr.
(a) Butler's Serm. 49. Barbeyr. Pref. to Puffend. 2. The
laft contents himſelf with faying, that the ſcience of morals
may be acquired jufqu à un certain degrè; though he adds.
par tous ceux qui veulent faire ufage de leur Raifon, dans
quelque etat qu'ils fe trouvent.
E 2
Thus
52
OBLIGATION OF NATURAL LAW.
Thus it is that the law of nature refolves
itſelf at laft into the law of reaſon ; and
hence it is called "the dictate of right rea-
"fon, pointing out that a thing is morally
right, or morally wrong, according as it
CC
"
r
agrees or difagrees with a reasonable focial
nature." (b) Hence alfo, (if we muſt have
à rule) there is a certain order, or fitneſs of
things, to the fupport of which all actions,
to be right, muft ultimately tend, (c) which
is called the Syftem of the law of nature;
and which like all other Syſtems, is a whole,
made up of component parts, the feveral
relations of which to one another, produce
the idea of what the ſyſtem itſelf is.
In man
this whole, or Syſtem, has for its parts, the
appetites, paffions, and affections, and the
principle of reflection or CONSCIENCE, which
compofe his inward frame; the relations of
which to one another confidered, produce
the idea of what his inward frame or confti-
(b) Jus naturale eft dictatum rectæ rationis, indicans
actui alicui, ex ejus convenientia, aut difconvenientia, cum
ipfa natura rationali ac fociali, ineffe moralem turpitudinem,
aut neceffitatem moralem, &c. GROT. D. J. B. P. I. I.
10. I.
(c) See the Relig. of Nat. delineat. p. 128. 6th Edit.
tution
OBLIGATION OF NATURAL LAW 53
tution is, from which it appears plainly, that
it is adapted to VIRTUE. (d)
--
Laſtly, as this muſt be an univerfal and
immutable law, or ceafe, from the terms, to
be the law of nature; every man whoever
lived, whatever may be his ideas concerning the
formation of things: even should he have the
misfortune to be an Atheist, is bound to obey
it. (e)
Such is the argument of a great and re-
fpectable body of writers, who would prove
a priori, from their ideas of the reaſonable
focial nature of man, that the law of that na-
(d) Butler's Pref. to Serm. p. 10, II,
(e) Elles (les loix naturelles) font certaines, obligatoires,
et facrées pour tout homme raifonnable; abſtraction faite
de toute autre confideration que celle de fa nature; et quand
meme on le fuppoferoit dans l'ignorance totale d'un Dieu.-
Il n'eft donc point d'homme, qu'elles que foient fes idées,
fur l'origine des chofes, eut il même le malheur d'etre
ATHEE, qui ne doivent fe foumettre aux loix de la nature,
&c.-(Vattel Prælim. S. 7. in the notes).
This is in the fame fpirit with GROTIUS (Prolegom. 11)
"Et hæc quidem quæ jam diximus, locum aliquem ha-
"berent, etiamfi daremus, quod fine fummo fcelere dari
« nequit, Nullum effe Deum, aut non curari ab eo negotia
"humana," &c,
E 3
ture
"
54 OBLIGATION OF NATURAL LAW
ture obliges him to the practice of virtue and
morality, according to the ideas which are con-
monly entertained of them; fince in order that
there may be no miſtake as to the particular
duties which they enjoin under thoſe general
terms, they go on to lay before us, the whole
ſcheme of offices which men who have been
in the habit of cultivating their reaſon to the
utmoft pitch of refinement, who have had all
the advantages of civilization, and even of
revelation, have agreed, after long and la-
borious reſearch, to call moral.
Thus, we are not only obliged in general
terms, by the natural law, to do good, and
avoid evil; to do as we would be done by;
to cultivate juftice, and to worship the Deity;
but, coming to particulars, we are to confider
as crimes againft nature, Adultery, Theft, For-
nication, Ufury, Falfehood, and every thing
that is forbidden by the Decalogue: (f) We
are
(f) Vide SUAREZ De leg. ac deo Legiflat. L. 2.
C. 7. 5.
Nam ea quæ naturali ratione "cognofcuntur, in triplici
genere diftingui poffunt.Quædam funt prima principia
generalia morum, ut funt illa, Honeftum eft faciendum,
pravum
OBLIGATION OF NATURAL LAW.. 55
are bound to avoid intemperance; to repair
any miſchief we may have cauſed to others;
to be always ready to render any innocent
ſervice that another may ftand in need of; to
keep our words inviolably; to avoid treachery;
to honour our Parents; and obey our Sove-
reign, fo long as he does nothing contrary to the
invariable maxims of natural right, or to the di-
vine law as revealed to men. (g) All this, and
much more, though they involve a number of
pravum vitandum: Quod tibi fieri non vis, alteri ne feceris;
de his nullum eft dubium, pertinere ad legem naturalem.-
Alia funt principia, magis determinata et particularia: tamen
etiam per ſe nota ex terminis, ut Juftitia eft fervanda;
Deus eft colendus; temperate vivendum eft: et fimilia, de
quibus etiam nulla eft dubitatio, et a fortiori patebit ex
dicendis. In tertio ordine ponimus conclufiones quæ per
evidentem illationem ex principiis naturalibus inferuntur, et
non nifi per difcurfum cognofci poffunt, inter quas, quædam
facilius et a pluribus cognofcuntur, ut Adulterium, Furtum,
et fimilia, prava effe. Alia majori indigent difcurfu, et non
facile omnibus notæ, ut fornicationem effe intrinfice malam
Ufuram effe injuftam; Mendacium nunquam poffe honeftari,
et fimilia.
Again. Nam præcepta Decalogi funt de jure Natura, ut
eft indubitatum apud omnes, et tamen non omnia continent
principia per fe nota, fed ubique indigent difcurfu, ut etiam
eft clarum, Id. Sec. 6.
(g) Barbeyr. Pref. to Puffend. P. 13,
E 4
points,
56 OBLIGATION OF NATURAL LAW.
C
points, many of which, as we ſhall preſently
fhew, are neglected by fome Nations upon
principle; and others depend on things, which
are abfolutely poſitive; all this, it is contended,
is enjoined by nature, with the force of law,
becauſe it is written on the heart of man.
On the other fide of the queſtion, there
have been many theories put forth, fome of
them eccentric to a degree of abſurdity, others
approaching nearer to a reaſonable ſhape, but
all of them adverfe to this idea of moral obli-
gation, confined to one particular fyftem,
drawn from the mere nature of things.
Without going into the detail of theſe
fyſtems, and premifing in the ſtrongeſt terms
our juſt horror, at thoſe of them which ſay,
that there is no obligation at all; or that it is
the nature of man to be vitious; or that at
leaft he has no law to follow but his own ap-
petite; premiſing this, I fay, I fhall endeavour
to examine the force of the foregoing argu-
ment, as far as it has been ſuppoſed to be
conclufive as to the point of our difcuffion;
which, it must be remembered, is fimply
whether, without the aid of a visible divine in-
terpofition,
OBLIGATION OF NATURAL LAW. 57
terpofition, mere nature alone, can point out
the obligation upon all the world, invariably
to obferve the fame moral duties.
Now it appears to me that the whole of
the argument on which the affirmative of this
opinion is founded, is liable to one great and
invincible objection; namely, that it does not
fufficiently establish the point, that the mere
focial nature of man carries along with it
uniformly, univerfally, and of neceffity, all
that train of fecial duties, purfued through all
their ramifications, which compofe the moral
fyftem of particular claffes of nations, and
which have been attributed to all the world,
with what juſtice, ought to have been more
fully made out by facts.
That man is a focial or gregarious animal,
no one will deny. That he cannot be this,
and at the ſame time feek as the end of his
being, the deftruction of thoſe with whom he
affociates, is equally clear, But it does not fol-
low, (at leaſt not without fome farther enquiry,)
that becauſe he is focial, he is bound to pur-
fue one, definite, and certain fet of actions, as
the
i
58
OBLIGATION OF NATURAL LAW.
the ſyſtems of natural morality would always
have us fuppoſe.
It is of extreme confequence to fettle this
in the beginning, becauſe the whole will de-
pend upon it. If he really is thus bound;
that is, if all mankind have always thought
it writ down in their duty, to purſue the
common Good in one, particular manner;
then, every thing that has been faid concern-
ing the neceffity of fupporting the order and
fitneſs of things to produce a general Social
happineſs, will hold good.
But if he is not thus bound; if it fhould ap-
pear from FACT that the opinions of men con-
cerning the manner of arriving at Good, are
fo various, that although we may ſay which
is the right one for ourſelves, we cannot de-
termine for others; then, what has been faid
concerning the dictate of right reaſon, point-
ing out that a thing is morally right or
morally wrong, from its agreement or dif-
agreement with a reaſonable Social Nature,
can be applied only to thoſe who concur in
their fentiments concerning Good, and can-
not be made binding a priori, upon thoſe who
have
OBLIGATION OF NATURAL LAW. 59
have fentiments of an oppofite nature. We wish
it, however, to be underſtood that in reafon-
ing concerning moral agents, we do not mean
to take into the account, any of thoſe who con-
fefedly give looſe to their paffions at the ex-
pence of reafon; but only thoſe who purſue
the courſe of life, and the habits and maxims
preſcribed to them by their education, and
their laws; of courſe, as far as we are able to
collect it, who purſue their reafon and judg-
ment.
Now, if it fhould turn out that all fuch as
thefe, do not uniformly and invariably act
according to the fame codes of duty; if many
of them, (finding themfelves independent of
all external motives of religion, or pofitive
conventions, and able, from mere ftrength,
to ſhift for themſelves,) appear to be indif-
ferent about the fitneſs of things in the fenfe
which is put upon it; or what is of ftill more
confequence, appear to have a fitnefs of things,
as it were, peculiar to themfelves, in fome
cafes perhaps, the very oppofite of the other
if this ſhould be the cafe, I do not fee how it
can be faid that the nature of man obliges the
whole
60
OBLIGATION OF NATURAL LAW.
whole world to act uniformly and immutably
in one, particular and definite manner.
This enquiry into facts; in other words
into the hiſtory of Man, in order to come at
his nature in theſe points, may appear un-
neceſſary to thoſe who take their ideas of uni-
verfal morality, folely from their own. And
indeed I have fometimes heard it afferted, that
as the laws by which reaſon works are im-
mutably the ſame; whatever is made out by
reaſon to be the law of nature, muſt be ſo to
every one, without any enquiry at all.
If we take the matter up a little higher, we
fhall however find that this is erroneous-
For although when our nature is once afcer-
tained, reafon may decide whether particular
actions are enjoined by the law of nature or
not; yet it is not reafon alone, but Reaſon
and Fact together, which must determine
what our nature is, or what it is not.
Of reaſon I have no other idea, than that it
is the faculty of the mind which teaches us to
draw conclufions from certain premiſes. What
the
OBLIGATION OF NATURAL LAW.
51
the premiſes are themfelves, unleſs they again
are to be deduced by reaſon from others, it
never will teach.
Thus, although the heart and the feelings
once thoroughly known, reafon may point out
the folly, or, in the language of the argument,
the disproportion to nature, which is diſcover-
able in the indulgence of blind paffion at the
expence of ultimate preſervation; and may
that way, as has been very ably fhewn, decide
upon what is nature and what is ufurpation:
Although it may point out the utility of grati-
tude, affection, and general benevolence; yet
it cannot plant thoſe feelings in our bofoms. A
man cannot force himſelf by reafon, to be
grateful, affectionate, or benevolent, if he hap-
pens to have the misfortune to be born with-
out thoſe feelings. Reafon at least is fo far
from implanting them, that the STOICS, who
place all happineſs in wiſdom, which is the
perfection of reafon, feemed to have for their
object the abfolute eradication of paffion and
affection.
Reaſon, therefore, as was obferved, although
it will point out to us what ought to be our
conduct,
1
62
OBLIGATION OF NATURAL LAW.
;
conduct, (our nature being fairly understood,)
will not of itſelf tell us what that nature is
and our knowledge in this refpect must be
derived folely from the fenfes, from obferva-
tion, experience, and matter of fact.
When thefe have been confulted, we come
at what we muſt always poffefs ourſelves of,
before reaſon can begin to work; namely, the
PREMISES, the combination of which pro-
duces the conclufions drawn by reafon; and
if there fhould happen to be a difference
about theſe premifes, the conclufions, even of
reaſon, cannot be immutably the fame. When
however, they have been aſcertained; then,
and not till then, may reafon ftep in and pro-
nounce upon the conformity of any action to
a general rule thus obtained. And this is the
fole meaning of our adding the epithet reafon-
able to nature; and of our coupling, as we
conſtantly do, the terms laws of reaſon, and
laws of nature, in the fame phraſe.
This then being ſettled, we are ſent to the
Hiſtory of the Actions of Man, to enquire
what his nature is; and if we ſhould diſcover
that the tendency to purfue, one, definite fet of
actions
OBLIGATION OF NATURAL LAW,
63
actions, is not univerfal; or that the ideas of
Good are not uniform; that is, if there fhould
be ſtrong, marked, and ample exceptions to theſe
points; the argument concerning a particular
Syftem of Morality for all mankind, enjoined by
the Law of Nature, as far as it is drawn from the
Univerfality of its reception, muſt be given up.
That a law of nature, to be binding, muft
be fhewn by the fact to be received by all
mankind, may I think be made out, (fhould
any doubt be entertained upon it) from the
following confiderations.
Whoever has obferved the various fenfes
in which the word Nature is ufed; whether
applied to the whole univerfe, or only to the
world called Earth; to the properties of all
created ſubſtance, or only to particular diſtinct
fpecies of it, as living or inanimate, being; or
fubdivided again into particular parts of theſe,
as vegetables, or ftones; brutish animals, or
reaſonable animals; will nevertheleſs diſcover
that it conftantly means a WHOLE, either ab-
folutely, or relatively; that is, if a Genus, the
whole of that Genus; if only a Species, the
whole of that Species.
5
Thus,
64 OBLIGATION OF NATURAL LAW.
το παν
Thus, the term Nature, when put by itſelf,
means invariably the whole order of things;
the To Tav of the antient philofophers. (b)
When we talk of the nature of matter, we
mean all matter; when we talk of the nature
of animals, we mean all animals; when of the
nature of human kind, we mean all human
kind; and hence human nature is put for
ALL men.
Even if we talk of the nature of particular
divifions of men; fuch as the Africans, the
Tartars, or the Italians; we fhould mean the
nature of all the Africans, all the Tartars, all
the Italians; fo that if we were to ſay, that it
was the nature of the Africans to be black; and
many of them were to be white; or of the
Tartars to have no Towns but to love a wan-
dering life; and many of them were to be found
eſtabliſhed in Cities; we ſhould, I believe, be
judged by all men, even the moſt circum-
fcribed in their intellectual powers, to have
(b)
Airs, vernal airs,
Breathing the finell of field and grove, attune
The trembling leaves, while UNIVERSAL PAN,
Knit with the Graces and the Hours in dance,
Led on the eternal Spring.-Par. Loſt, IV. 265,
given
OBLIGATION OF NATURAL LAW. 65
given a very erroneous account of their
nature.
NATURE therefore, in this acceptation of
it, is what the Logicians call the ESSENCE of
a thing; it is that, without which the thing
defcribed, would not be what it is deſcribed;
of courſe, it muſt comprehend, and ſpread
itſelf through every part of the thing. Thus,
(to purſue our illuftrations) if an Indian who
had never been out of the torrid Zone, (and
who therefore believed, that it was a law
of nature for rivers to be perpetually in a
fluid ftate ;) were to vifit a higher lati-
tude, and to ſee the rivers gradually congeal-
ing by froft; he would be obliged on his re-
turn home to tell his Brother Indians, that
they had been wrong in their ideas concerning
the law of nature with reſpect to rivers.
Now to apply this (if the reader has not
done it already) to the laws of nature as they
concern human kind; it will follow, that if
thefe particular moral duties, fuch as they
have been detailed above, are not received as
moral duties, all over, or nearly all over the
world; no obligation can be made out from
VOL. I.
F
the
66 OBLIGATION OF NATURAL LAW.
the heart, or the impulfes of the nature of
man, by which, independent of external mo-
tives, (i) we are all of us bound to obferve
them; and as the Indian traveller was forced
in viſiting higher latitudes, to give up the idea
of the Law of Nature concerning the in-
variability of the ftate of rivers; fo muſt a
moral philofopher who argues for the obliga-
tion impofed by his fyftem, from the uni-
verfality of the feelings and difpofitions on
which the duties he enjoins are founded; be
forced to give up this obligation, fhould the
fact of the univerfality, be fairly fhaken.
of
In this reſpect therefore the rules of philo-
ſophiſing with regard to morals, may be com-
pared to the rules of philofophifing in phyfics;
by which it is laid down, that "the
the way
ANALYSIS, ought ever to precede the method
of COMPOSITION; which analyſis, conſiſts in
making experiments and obfervations, and in
drawing general conclufions from them by in-
duction; and although the arguing from ex-
periments and obfervations by induction, be
no demonſtration of general conclufions; yet
(i) Namely, of Religion, or the Civil Power.
it
OBLIGATION OF NATURAL LAW. 67
it is the best way of arguing, which the nature
of things admits of; and may be looked upon
as fo much the ftronger, by how much the
induction is more general. And if no ex-
ception occur from phoenomenon, the con-
clufion may be pronounced generally. But if
at any time afterwards, any exceptions fhall occur
from experiments; it may then be pronounced
with fuch exceptions." (k)
Now I own, I do not fee why this reaſon-
ing of the greateſt of all experimental Philo-
fophers, fhould not hold good with refpect to
morals. And fhould it do fo, it will follow,
that if upon an analyfis of their modes of
thinking, to be found in the hiſtory of man-
kind, there are any particular fets of actions
which obtain univerfaliy, and uniformly amongſt
them as duties; thofe duties may be fairly
faid to proceed from the NATURAL LAW.
But if thoſe ſets of actions are found to be re-
jected by vaſt numbers of men; and not only
this, but that their oppofites are ſubſtituted to
hold their places equally as duties; why then,
the conclufion is to be pronounced not gene-
rally, but with fuch exceptions.
(k) Vide Sir Ifaac Newton's Method of Philoſophiſing.
Optics, P. 180.
F 2
We
68
OBLIGATION OF NATURAL LAW,
We might not heſitate even to affirm, that
as what have been fometimes fuppoſed to be
the laws of nature as relative to phyfics, have
been abfolutely overturned by a long, uni-
form, and adverſe ſet of experiments;. So,
were the fact to happen that men were found
univerfally to purſue a conduct the very op-
pofite to that which in general they think
themſelves obliged to adopt, the ſuppoſed na-
tural law of mankind might alſo be faid to be
overturned; fo much does the difcovery of
what this natural law is, depend upon experi-
ment, that is upon what actually is the general
conduct of men. Always however provided,
that fuch an oppofite conduct is adopted in
compliance with the deliberate judgement of
thoſe who purſue it, and is not a mere viola-
tion in practice, of what is received and fettled
in theory.
As therefore before the introduction of ex-
perimental Philofophy, abundance of Hypo-
thefes were often ſtarting forth, which, what-
ever ingenuity they might evince before the
facts were enquired into, were inftantly put
down and confuted by adverſe experiments ;
fo it is very poffible in morals, when men
argue a priori, and affume things as fact,
which
2
OBLIGATION OF NATURAL LAW. 6
which may not be fo, or not ſo in fufficient
univerfality, for the whole fabric which they
build, whatever may be its beauty or mag-
nificence, to fall with its foundation.
Hence then it is we imagine, that the
whole of this intereſting ſubject reſolves itſelf
at laſt into the HISTORY OF MAN; To that,
and that only, can we refer; it is the fole
point to which the forces of the two contend-
ing opinions can be fatisfactorily directed; it
is the only iffue, that can be fairly joined, fo
as to produce a lafting conclufion. For in
vain do we purfue the matter through all the
fubtleties of intellect; in vain are the pro-
foundeſt metaphyfics made uſe of to prove
any one thing concerning the nature of man,
a priori. Of that nature I can obtain no
knowledge, except through the fame channels
by which I become acquainted with the na-
ture of any other animal; nor can I tell what
is is that nature demands of man to do, except
by enquiring what he has actually done.
དྷ
Now, if in making this enquiry, we were
to find, that mankind were like a multitude
that fet forth to attain the fummit of a diffi-
cult mountain; and many paths preſenting
themſelves, that they all of them, or nearly
F 3
all,
70
OBLIGATION OF NATURAL LAW.
all, took the fame path; we might then with
tolerable juftnefs be led to believe, that they
were impelled to it by fome deſtiny, or law.
But if, on the contrary, no external influence
arifing to deter them from all but one, the
fact actually proved to be that they often fell
into different tracts; we ſhould have no in-
ducement to believe that only one of the
various paths was the right one. And no ad-
vice being given, no reward held out, no
puniſhment threatened; in fhort being under
no influence, other than the appearance which
the paths might wear to bias their judgments;
we could not reaſonably imagine that it was a
crime to enter into any one of them, more
than another.
When however a track was once chofen,
and that upon a deliberate and firm belief that it
was the right one, even though in the end
it ſhould lead into mere labyrinths and quag-
mires, the fet of travellers that purfued it would
be bound to do fo until they diſcovered their
error; and thus, though there were as many
different fets of travellers as there were paths,
each fet would be under equal obligation, in
their own minds, to continue their courfe.
The
OBLIGATION OF NATURAL LAW.
71
The hiſtory of the mind of man will pro-
bably upon examination appear to conform
to this allegorical account of it. Some great
principles may no doubt be found in fuch uni-
verſal ſtability, that they may very fairly be
faid to form the Law of Man's Nature; as the
defire of Happineſs; the purſuit of Good;
and the rejection of Evil; and fubordinate to
theſe, the wiſh to ſupport the intereſts of our
country or families; for without theſe, the
nature of things in thefe points, would indeed
be deſtroyed. But when we come to the par-
ticular detail of the manner in which we can
beſt arrive at theſe great objects, we muſt give
up the expectation and even the hope of uni-
verſality; for whether we take favage or civi-
lized life, it will be found that the Science of
Morals, which every one would have to be fo
certain, has been, when divested of the visible
and protecting band of the Almighty, capable of
almoſt as much diverfity of opinion, as there
has been diverſity of feeling and ſentiment in
different claffes of men.
I mean not (as was before obferved) to
draw any conclufions from the example of
thofe men who confefs an indulgence of
paffion at the expence of reafon; but of thofe
A
F 4
only
72
OBLIGATION OF NATURAL LAW.
only who think they are acting rightly;
of thoſe even who have been remarkable for
the ſubtlety of their underſtanding; many of
them eminent for gravity, and fome of them
for fuperior virtue,
3
Thus CARNEADES, reaſoning upon the
obligations of morality, afferted that there was
really no fuch thing as a law of nature; no
fuch thing as JUSTICE; but that every thing
that appeared uſeful, was thereby rendered
lawful, GROTIUS could only ground the
confutation of this, upon the difpofition of
man towards fuch a ftate of fociety as is fup-
pofed by the argument we are canvaffing;
not, fays he, qualifcunque, fed tranquillæ ; (1)
which tranquil ftate, whether it is univerfally
pitched upon to be the happy one, it is
obvious can only be determined by an enquiry
into the fact.
The celebrated HOBBS again, as is well
known, queftions this laft opinion in the moſt
direct manner, when he fays the very nature
of man leads him to war with his fellows.
EPICURUS made all happineſs to confift in
pleaſure, either mental or corporeal; without
any great fecurity for the rights of others
(1) D. J. B. P. Prologom. 6.
which
OBLIGATION OF NATURAL LAW. 78
of it.
ARI-
which might ſtand in the way of it.
STIPPUS Confined it to fenfual pleaſure; and
the STOICS baniſhed all pleaſure whatſoever,
by endeavouring to render the mind, what it
certainly is not, an abfolute blank with refpect
to the affections; and if pain could not be
fubmitted to, their only reſource was in felf-
murder. (m) The CYNICS, from principle,
threw off all appearance of decency, and per-
formed the moft immodeft and diſguſting
offices of nature in public, upon the ſole idea
that it was nature that had enjoined them.
'The SCEPTICs and followers of ARCESILAUS
doubted of every thing; refuſing to decide
that any one thing was ftrictly virtuous or
vitious; doing away by fuch tenets, the whole
advantage of Moral Philofophy. (n) PLATO,
indeed contended for the dignity of human
kind, and a refinement of friendſhip approach-
ing to chimerical; but ARISTOTLE at leaſt
confined it to the handful of men called
Greeks; when he laid it down that ſtrangers
were meant by nature to be their Slaves, and
(m) ZENO fupported his own precepts upon this point in
a manner fomewhat extraordinary, when he hanged himſelf
merely becauſe he broke his finger.
Stanley's Lives, &c, 297.
(2) See Stanley's Hift. of Philofoph. tit. Diog. & Arces.
}
accord-
74
OBLIGATION OF NATURAL LAW.
accordingly, that it was allowable to make
them fo wherever they could find them. The
ROMANS, all wife as they were in the na-
tural law, feemed to have had this Dogma in
view, in allowing by their Digeft, the re-
duction to captivity of all thofe between whom
and themſelves there was no treaty. (0)
They were equally faulty in maxims that
regarded their private lives; of which their
filthy and depraving cuftom of lending their
wives to one another, a habit which it fhould
ſeem is as revolting to nature as any, and ex-
prefsly forbidden by the writers on natural
law,) is a fufficient proof. Nor did this exiſt
when Rome was the receptacle of favage
banditti; but when fhe was the abode of the
Arts, of Stateſmen, and of Orators. (p) A
neighbouring nation who boaft themſelves
ftill more wife than the Romans, feemed to
go as far as they did in this point, when they
paffed the licentious law by which married
perfons might be divorced, without affigning
(0) Vide infr, Chap. VI,
(Þ) Cato lent his wife to Hortenfuus (fhe being then big
with child) but a few years before the Auguftan Age. The
latter, as is well known, was an orator of the firſt rank, and
a very accompliſhed man,
5
1
any
OBLIGATION OF NATURAL LAW. 75
any reafon, but the mere perfevering deter-
mination of either of the parties; a kind of
marriage which, I confefs, I cannot diſtinguiſh
from that of a Lion and Lioneſs in the woods,
who copulate together and depart as they
pleaſe.
The EGYPTIAN laws gave a fanction to
Inceft. By the ATHENIAN, a man might
marry his Sifter by the Father's fide; and if a
woman was an heireſs, ſhe was bound to
marry her next of kin-If alfo her huſband
was old and impotent, fhe was permitted to
cohabit with his neareſt relation; and this was.
a law of the far famed SOLON. (9) In the
fame fpirit with this, the Incas of Peru could
only marry their fitters, if they had any; if
not, their neareſt relation. (r) A Tartar,
upon the death of his father, married all his
Wives, except his Mother; (s) and marriages
with Sifters were permitted among them, and
was ſometimes even a duty, although fornica-
tion was puniſhed with death, (t)
If this kind of inceftuous marriage how
(9) Potter's Antiq. 1. 170.
(r) Picart. Cerem. Relig. 3. 204.
(s) Rubruquis Voy. ap. Hackluyt. I. 99.
(t) Carpinis Trav. ap Hackluyt, 1. 55,
ever
76
OBLIGATION OF NATURAL LAW.
ever is not unnatural, (which has been held
by fome ;) (u) others, which have been ex-
prefsly condemned as fuch, (w) have alfo met
the fanction of very extenfive and even wife
nations. ATTILA married his Daughter, in
mere compliance with the SCYTHIAN cuftoms;
and the MAGI of the Perfians, following the
laws of ZOROASTER, not only allowed the
marriages of Parents and Children, but en-
joined that the members of their own body
could only be taken from the offspring of
fuch a commerce,
And how is it that Men have been known
to treat their Children; not in a burst of
paffion, difproportionate to a reaſonable cool
ſelf love, but upon a deliberate principle of
doing what they thought was good. The
LACEDEMONIANS, in order to enſure a hardy
race of men, defiroyed all their infants that
appeared infirm; nor were parents allowed to
rear them, even if inclined to do it. The
new born children were carried before certain
Judges called Triers, who if they appeared
likely to thrive, gave orders for their prefer-
vation; if not, they were thrown into a deep
(u) Grot. D. J. B. P. 2. 5. 12. 1.
(w) Id. 2. 5. 12. 2.
Cave
OBLIGATION OF NATURAL LAW. 77
Cave of Mount Taygetus. (x) The fame
practice of expofing children was nearly uni-
verfal over Greece, the Thebans being praiſed
by Elian for being the only people in the
country, by whom the cuſtom was pro-
hibited. (y) By the Laws alſo of the Twelve
Tables, the Romans were even commanded
to deſtroy thoſe of their offspring who were
eminently deformed. "Pater, infignem ad
"deformitatem, puerum cito necato." (≈)
Nearer to our own times is the ftill exiſting
cuſtom of the CHINESE; nor is it an excufe,
but rather an aggravation to ſay, that neceffity
legitimates the practice; fince the riches and
the wiſdom of CHINA are the boaſt of the
world, and the neceffity complained of muſt
be owing, not to the want of food, but the
improper diftribution of it.
In the thirteenth century, BARTOLUS, the
moſt famous Civilian of his time, and there-
fore the moſt likely to underſtand the law of
nature, contended gravely that the Emperor
of GERMANY was the Emperor of the World;
(x) Potter Antiq. 2. 333.
(y) Ælian. 2. 7.
(z) Mem. des Inſcriptions. 12. 78.
and
*
98
OBLIGATION OF NATURAL LAW:
and DANTE, another Civilian, affigned a rea-
fon for it, founded no doubt on the natural
law, fince he ſuppoſed it to be ſo, becauſe it
was for their good. Both antient and modern
nations, and the wifeft men amongst them,
have concurred in juftifying the Slavery, not
merely of perfons who may be fuppofed to
have forfeited their liberty; but of thoſe who
have not even feen the light: For this they
do when they affert, that as children muſt
follow the lot of their mothers, the children
of female Slaves muſt be Slaves alfo.
Laftly, the Legiſlators of twenty-five mil-
lions of men in FRANCE, affirmed, that it was
Nature that had pointed out the true bounds
of their Empire to be the SEA and the RHINE;
and accordingly twenty-five millions of men
wage bloody war, in part, to ſupport this
moft natural propofition. All theſe abfurdi-
ties, theſe horrors, and this injuftice, are
quoted, not as the temporary and avowed re-
bellion of the paffions againſt reaſon; but as
the dictates, to thoſe who held them, of reaſon
herſelf. Nor were they the maxims, or rule
of conduct of infane, or wicked individuals;
but moſt of them, as we fee, are drawn from
immenſe
OBLIGATION OF NATURAL LAW.
79
immenfe and important Empires; from the
Schools of Sages, and the lives of Heroes. (a)
Thus much for the idea of civilized men
and nations upon this fubject. Were we now
to go into the detail of the practices of others,
who have never been in the habit of culti
vating their reaſon, to any great height; we
fhould contemplate that frightful picture of
deformed humanity, which has induced many
to believe that man is really meant by nature
to be even a vitious being; than which no-
thing, as has been obferved, is farther from
our opinion.
The examination however of the accounts
of favage life is demanded by our fubject, be-
cauſe it has been fometimes fuppofed one of
the moſt certain methods by which we may
diſcover what our nature really is. Men, it
is contended, are fo much the Slaves of habit
and prejudice, that it is very difficult for them
to reafon upon things with that freedom, and
as it were, nakedness of mind, which truth de-
mands for its certain developement. And hence
many philofophers, in their reſearches upon
(a) Thoſe who would go deep into this hiftory of opinions
may read the latter part of Barbeyrac's Pref. and confult
Stanley's Hift. of Philof, and Bruck. Hift. Philoſoph.
this
80
OBLIGATION OF NATURAL LAW:
this fubject, have preferred the leffons drawni
from the opinions and cuftoms of men, who
approach neareſt to the rude ſtate of nature,
to the more fplendid, but lefs certain docu-
ments which are prefented by a cultivated
State of Society. Hence alfo aroſe the Theory
of the State of Nature itſelf, which many have
imagined, in order the better to ſet before us
the deductions of their opinions.
If however, as we have contended, it is
FACT which muft determine all thefe points;
we must pay no regard to the mere thecries of
what man would do in this ftate: but confine
ourfelves to what he is known to have done,
in thoſe circumftances in which he has actually
been viewed.
But ſhould we do this, the favage ftate is
the moſt unfortunate of all others which
writers could lay hold of, in order to fupport
their opinions concerning the natural obligatim
upon all men to purfue any particular ſyſtem
of morals; fince it is notorious that there is no
rule fo facred among mankind, (if by man-
kind we mean civilized people,) no duty fo
venerable, no conduct fo beautiful, as not to
be rejected almost invariably by Savage Na-
tions,
OBLIGATION OF NATURAL LAW. 81
tions, and their very oppofite fubftituted in
their places.
It was held by SUAREZ, () that all the
crimes of the Decalogue, are crimes againft
the law of nature. There is hardly one of
them, that is not practifed, and that almoft
invariably, by thoſe who approach neareſt to
what is called a ſtate of nature. They have a
variety of Gods, and fet up graven images ;
of the holiness of the ſeventh day, they can
have no idea; if they honour their fathers
and mothers, they do it at leaft in a way which
fills civilized people with horror: fince they
knock them on the head, or feed upon their
bodies and entrails, (than which it would ap-
pear nothing can be more revolting to na-
ture.) (c) Their murders, their thefts, their
adulteries, (attended fometimes with circum-
ftances
(b) Ut Sup. p. 53.
(c) The Tartars, fays Hackluyt, have a ſtrange, or rather
miferable kind of cuftom, "for when anic man's father de-
«ceafeth, he affembleth all his kindred, and they eat him."
(Voyages 1. 59.) The people of Tibet uſed to eat the car-
cafes of their parents, not from want, but that for pity's
fake, they might make no other fepulchre for them than
their own bowels; (Id. 1. 116.) and even fo late as 1253,
they continued to make drinking cups of their fulls. (Ib:)
VOL. I.
Q
I
The
82
OBLIGATION OF NATURAL LAW.
ftances of horror,) (d) and their covetouſneſs
of other men's goods, are too univerfally
known to need much amplification.
It is held that the law of nature obliges
men to reſpect each others property. The
time was, and is, when amongſt vaſt nations
of men, to plunder, not from one another,
but from all the reft of the World, was con-
fidered
The Africans are faid to have fed conftantly on the dead
bodies of their friends; (Dapper ap. Picart. 4. 476.) and
the Floridans, the Mexicans, and the Caribs ground the
bones of their relations to powder, and drank them. (Id.
3. 133. 141. 166.) The Islanders of Socatara, when their
friends are dying, do not wait their laft moments, but bury
them alive. (Id. 4. 503.) To this head may alſo be referred
the noted cuftom of the Indian widows, of burning them-
felves with their hufbands' bodies, and of many people on
the fame continent, among whom, when a huſband or wife.
dies, it is a point of honour for the furvivor to be buried
with the corpfe. The inhabitants of Java were not content
to deſtroy their old men, or ſuch as could not work, but
carried them regularly to a publick market, and fold thei
to the Anthropophagi. (Id. 4. 136.)
(d) Among the Banians, an extenſive fect that ſpread
themſelves through all the provinces of India, (Broughton's
Hift. of Relig. Voc. Ban.) the Hufband poffeffed his Wife
only the firft night, and afterwards all his Brothers alter-
nately to the feventh, if there were fany, during the
feven nights after; and the huſband cou not claim his
wife excluſively from his brothers, but ſhe and her iffue
were
!
OBLIGATION OF NATURAL LAW.
83
fidered as the higheſt duty, and fuccefs that
way, the higheſt praife. (e)
were common to them all, (Picart. Cerem. Rel. 4.
149.) The Moguls kept their Women in common, both
Mothers and Daughters upon principle, (Id. 4. 364.) And
the like cuftom is recorded by Cæfar to have had place
among our ancestors in Britain. "Uxores habent deni
"duodenique inter fe communes, & maxime fratres cum
"fororibus, et parentes cum liberis;" &c. (De Bell. Gall.
1.5.) So alfo the Otahietans, among whom, in addition
to the almoſt univerfal licentioufnefs of the women, there
exifted a horrid Society or Club, in which all the women
were not only common to all the men, but the children
were deftroyed as foon as born. (Cook's Voyages.)
(e) Many nations are known to fubfift by the pillage
of Travellers who pafs through them to other countries, as
the Arabs, and many of the Tartars; The Malays are
nearly all pirates; and fo formerly (nor were they aſhamed
of it) were ſeveral nations of antiquity; Thucydides ob-
ferving that among the ancient Greeks to be afked whether
a people were pirates, was not to reproach them. The
Solitary Indian who was met by Captain Cook in Duſky
Bay in New Zealand, being prefented with hatchets, and
afked what he would do with them, faid he would go and
kill men. (Fofter's Voyage.) The king of Benin, in
Africa, upon afcending the throne, maffacres numbers of
his fubjects in honour of his acceffion. (Picart. 4. 450.)
The Guages, a people of the fame country, when they go
to war, elect and confecrate a General, who at a facrifice is
prefented with a hatchet, with which, as a proof of the
prowefs to be expected from him, he is to cut down a
youth that is brought to him at a blow.
Scandinavians waged univerfal war:
(Id. 4. 472.) The
but we fhall have
occafion to obferve thefe points more par.icularly in the
hiftory of the Law of Nations.
G 2
B4
OBLIGATION OF NATURAL LAW.
[
}
It is held, that parents are to protect and
cherish their children. Numerous are the in-
ftances, where children are expofed, or fold
to flavery, or wantonly put to death, and
even eaten by their parents, without that
necefity, which alone can bear the ſemblance
of a reaſon for it. (ƒ)
(f) Among the Mexicans, if a Mother died while
fuckling, and in Madagaſcar if in child-bed, the child was
put to death, in order to prevent its being an orphan¸
(Picart. 3. 176. 4. 510.) In Bengal, formerly, if a new
born child refuſed the breaft, it was expofed a whole day
upon a tree in the woods, to the mercy of the Crows and
Infects, and taken down in the Evening. If it ſtill refuſed,
It was expoſed a ſecond day, and if it refuſed a third time,
it was thrown into the Ganges. (Tavernier's Trav. 1. 3.)
The Korabites deftroyed their daughters, thinking many
of them a nuiſance; and when the mothers were in labour,
they were carried down to a grave fide, where if the child
was a female, fhe was inftantly buried alive. (Picart 6.
III. confirmed by Pococke.) The Inhabitants of Caucafus,
made a trade of their children, and take many wives for
the exprefs purpoſe of producing for the market, in the fame
manner as if they were cattle. (Chardin's Trav.
• ap Har-
ris. 1. 865.) The Amazons are faid to have mutilated
their male infants as foon as born, in order to prevent their
being formidable to them. And to this head may be fairly
referred the fhocking cuſtom fo familiar with our own days,
of emafculating children for the purpoſes of Jealouſy in the
Eaſt, and of amuſement in Italy; which latter is ftill more
unnatural, fince the preſervation of a wife's chaſtity is of
more confequence, than the gratification of a mere paffion
for mufic.
It
OBLIGATION OF NATURAL LAW. 85
It is faid, that USURY is forbidden by this
law. Yet nearly the whole World, concur
in the practice of demanding intereft for
money, and the virtuous BRUTUS himſelf,
fo celebrated for giving every man his own, was
one of the moft noted Ufurers of his time.
It is held, that nations fhould do as little
harm as poffible to one another in war, con-
fiftent with their mutual interefts. Yet who
fhall reconcile this with the horrid cuftom fo
prevalent among Savages, of eating priſoners
out of revenge; nay of refining their taſte on
this point, and taking pains in the prepara-
tion, in order to render the repaft more ex-
quifite? (g),
(g) The ancient Cannibals of Ireland are faid to have
confidered the pofteriors of boys, and the breafts of women
as the daintieſt diſh. (Speed. 167.) The Brazilians would
not eat their priſoners till they were fat, and of a certain
age; and if any one, deftined to the flaughter-houſe, was
lean, he was carefully fattened. During the interval,
(probably with a view to bring him fooner into good
plight) he was allowed every fort of amuſement, and even
a woman for his companion; who fo far put on the appear
ance of a wife, that when he was actually butchered, fhe
howled and wept as if fhe had loft her best friend; but
when he was cut up, fhe partook of the feaft with her
countrymen. (Picart. 3. 183.) The Antis, a people of
South America, cut their prifoners piecemeal while alive;
and the women, fmearing their nipples with the blood,
gave them their children to fuck. (Id. 3. 199.)
Ic
86
OBLIGATION OF NATURAL LAW.
It is afferted, that the law of nature obliges
us to obey our Sovereign, fo long as he does
nothing contrary to natural right.-What
that natural right exactly is, has puzzled, or
at leaſt divided, all the fages who have in-
veſtigated it-Thus, when the FRENCH wiſhed
to overthrow their old conftitution, the foun-
dation for their power to do ſo, was fought
for in an account which they drew up, of the
rights of man. When they overthrew their
new conſtitution, they found they had been
wrong in this account; and they therefore
employed another fet of Sages, to draw up a
fecond; not to mention the ſpreading and
moft pernicious opinion, that becauſe the peo-
ple are, (what no one can contradict,) the
fountain of all power, the people may there-
fore deſtroy the government which they them-
felves erect, as often as they pleaſe, and merely
becauſe they pleaſe.
It is afferted by one fet of writers, that we
are bound in all cafes whatfoever, to fpeak
the truth. By another, it is however permitted
to deceive, when a man afks for information
for a bad purpoſe; as in the caſe of a mad or
paffionate man, who afks
who aſks you where his
enemy is, in order to deftroy him.
And
OBLIGATION OF NATURAL LAW. 87
And thus, concerning all, or almoſt all
thefe duties, which it is fuppofed are enjoined
with ſo much certainty and plainneſs by the
law of nature, there is a wide difference in
the opinions, and a ftill greater difference in
the deliberate practices of mankind; from the
uniformity of which practices alone, they can
be ſaid to be univerfally binding.
What then are we now to think of thoſe
momementous propofitions of the profound
BUTLER and others, which could they be
made out with univerfality and truth, would
moft undoubtedly decide the whole queſtion?
-I mean that the perception or principle of
CONSCIENCE, is fufficient to point out to a
man, the moral good or evil which attends
every part of his conduct; that obligations
to the practice of virtue, drawn from a re-
view of our nature, are really no more than
appeals to every man's heart, or natural con-
Science, in the fame manner as the external fenfes
are appealed to for the proof of things cognizable
by them; And that if any plain honeft man, be-
fore he engages in any action, were to aík him-
ſelf whether what he is about to do, is right
or wrong, he would be able to answer the
G 4
question
}
88 OBLIGATION OF NATURAL LAW.
queftion agreeable to virtue and truth in almoſt
any circumftance.
That there is fuch a perception as CON-
SCIENCE, and fuch a feeling as SHAME,
cannot be denied; but may we not from
what has just been related, affirm with fome
degree of reaſon, that they are mutable, and
vary with the varying ideas of man concern-
ing what is duty; that they are made to de-
pend upon the prejudices of his education, or
at leaſt cannot be diftinguiſhed from them,
and therefore that they are the mere com-
punction which he feels for having done
fomething which fhocks thoſe prejudices?
of courſe, that they cannot go the length of
forcing all mankind to the obfervance of one
particular fet of morals, which, it cannot be
too often remembered, is the fole quef
tion? (b)
In
(b) They who contenting themſelves with fuperficial
and tranfient views, deduce the difference between good
and evil from the common fenfe of mankind, and certain
principles that are born with us, put the matter upon a
very infirm foot. For it is much to be fufpected that
there
OBLIGATION OF NATURAL LAW. 89
In this point of view therefore, the quef
tion concerning Confcience and Shame, (as
they are fuppofed to enjoin a particular
ſcheme of duty,) refolves itfelf into, and
indeed becomes, that other celebrated quef-
tion of the Moral Senfe, or the Innate know-
ledge of right and wrong; concerning the
exiſtence of which, it is known that men
of the firſt Abilities and Judgment have
doubted.
Into this celebrated enquiry, it is not my
intention to enter, fince it would be but a
vain expence of time when fo many perfons
of learning competent to fettle it, (if it could
be fettled,) have failed in drawing any abfo-
Jute conclufion upon it.
It will perhaps however be at leaſt ſafe to
conclude with an author of deferved reputa-
tion for knowledge in the fcience of morals,
"Either that there exiſt no fuch inftincts
there are no fuch innate maxims as they pretend, but that
the impreffions of education are mistaken for them; and
befide that the fentiments of mankind are not fo uniform
and conftant, as that we may fafely truft fuch an important
diftinction upon them.-Wollafton. Relig. of Nat. p. 23.
6th Edit.
$6
$ as
go OBLIGATION OF NATURAL LAW,
"
as compoſe what is called the Moral Senfe,
or that they are not now to be diſtinguiſhed
"from prejudices and habits; on which ac-
ec
count, they cannot be depended upon in
"moral reaſoning." (i) Should this conclu-
fion be neareſt the truth, the upholders of
the natural law, as far as it concerns one certain
Set of actions for the whole world, muft lofe
the fupport which they wish to derive from
this principle; which indeed, could it be
fatisfactorily made out, would preclude the
neceffity of every fort of enquiry upon the
fubject.
Upon the whole then, if we confider man-
kind as totally independent of the control of
eivil inſtitutions, and deftitute of thofe in-
eftimable advantages concerning the inten-
tions and providence of the DEITY, which
his goodneſs has revealed to us; it would
appear that the law of nature, as far as the
particular ramifications of morality are con-
cerned, is like the moral fenſe itſelf. That
is, either it does not exift at all, or it is fo
confounded with our prejudices, and habits,
and peculiar ideas of happineſs; and fo vari-
(i) Paley's Mor. Phil. B. i. ch. 5.
oufly
OBLIGATION OF NATURAL LAW: gr
oufly made up, according to the various
cafts of thought, and the varying perceptions
of man, that with reſpect to the obligation
in the Univerſe to purſue the particular duties
which it is faid to enjoin, nothing certain
can be fatisfactorily laid down concerning it.
It is in vain that we are referred to Rea-
fon, as capable, from its immutability, of giv-
ing us one certain and never failing rule, by
which we may arrive at the binding prin-
ciple. We have already obferved, that
although the laws by which reaſon works
are immutable, yet unless the premises are
fettled, nothing can be made out by them;
and if the foregoing account of the actions
of man when left to himſelf, is thought fuf-
ficient to prove him a being whofe nature
cannot be diſcovered, with any great degree
of certainty, to impel him invariably to the
obſervance of one certain Syftem; it will fol-
low that the laws of reaſon themſelves will
not enable us to make out the point, any
more than CONSCIENCE, or the mere con-
fultation of our hearts and
great proof of which is to be
feelings; the
diſcovered, in
that multiplicity of difcordant theories, (all
of them equally attempted to be made out by
reaſon)
42
OBLIGATION OF NATURAL LAW.
reafon) which has already been laid before
the reader. (k)
And this may alſo ferve as an anſwer to
very many triumphant affertions that have
been made concerning the power of reaſon;
which can only be afcribed to the miſtake of
thofe who make them, in not ſeeing that
even for REASON to difcover any truth, it
is neceffary that the truth of the premiſes
fhould be already allowed,
Hence therefore, when BURLEMAQUE
affirms as he does, (1) that many reaſonings
and cuſtoms which appear adverſe to his own
Syſtem, are mere deviations from the right
rule; he does not confider that thofe very
(k) Puffend. 2. 3. 20. has the following paffage, La
Raiſon n'eſt pas à proprement parler, la Loi Naturelle,
mais feulement un moien de la connoitre, fi nous le met-
tons en uſage, comme il faut. Now who is to anſwer for
what is comme il faut? Montaigne goes into the other
extreme, (Effais. 1. 2. ch. 12.) And Wollafton confeffes
that in this talk concerning right reafon, room is left for
many difputes and oppofite right reafons, and nothing can
be fettled while every one pretends that his reafon is right.
Relig. of Nat. p. 23,
เ
(1) Burlemaq. Du D. Nat. 2. 6. 8.
reafon-
OBLIGATION OF NATURAL LAW. 93
reaſonings and cuſtoms must be confulted, in
order to aſcertain what the right rule is.
BARBEYRAC falls into the fame mistake,
though he affumes a more regular appearance
of argument, when he fays that particular
tribes of men may be compared to the fer-
vants of a maſter going a journey, who leaves
certain orders with thofe fervants, eafy to be
underſtood and to be executed, but which
they do not obey. In which cafe, fays he,
they may afterwards fall into great diforders
from the want of confulting them, and
although they may have every good with to
do what is right, ftill they are not lefs liable
to be blamed, nor lefs worthy of puniſhment
upon his return. (m) In this illuftration the
point in queſtion is affumed. Since the dif-
ficulty is to diſcover what the orders of our
maſter may mean, even after having con-
fulted them; and the very circumftance of
our confufion proves that they may be mif
underſtood. It is equally affumed by him
in another place, where he fays that men of
(m) Barbeyr. Pref. to Puffend. p. 14.
3
underſtand-
94 OBLIGATION OF NATURAL LAW.
underſtanding have abuſed their leifure and
talents, in broaching doubtful points. (2)
Hitherto we have viewed the nature of
man apart from all confiderations of religion
whatſoever ; not merely from thofe revela-
tions which God in his bounty has beſtowed
upon the world; but thofe general fentiments
of a deity, which compofe what is commonly
called natural religion.
And we had good reafon to do this 40
fince two of the weightieft writers upon our
fubject have fuppofed, that all the duties,
the obligation of which we are examining,
are commanded by the law of nature, and
are therefore binding upon all men,
all men, event
though they should be impious enough to deny the
very exiſtence of a deity. (0)
Graver confiderations however preſent
themſelves now for difcuffion. The diffi-
culty, not to ſay impoffibility, of deriving
any particular fyftem of morals, (obligatory.
(n) Barbeyr. Pref. to Puffend. p. 17,
() Vide ut fup. Vattel Prelim. Sec. 7. & Grotius,
D. J. B. P. Prolegom. II.
upon
OBLIGATION OF NATURAL LAW.
95
upon all) from natural feelings alone, or the
dictates of reaſon occupied merely in analyf-
ing thoſe feelings; has induced the greater
number of writers to wave the point of a
total want of religion, and to admit that the
idea of a Deity must enter into the compo-
fition of the law of nature, in order to render
it binding. Thus it is confeffed, that how-
ever clear the dictates of reafon may appear,
there is no obligation upon man to comply
with them, without having recourſe to ſome-
thing higher. (p)
An important and very reaſonable theory
is therefore fet out, (the effect fometimes of
(p) Cependant pour donner force de loi aux maximes
de la raiſon que nous avons etablies, il faut, comme je
Ì'ai dit, ſuppoſer ici un principe plus relevé.
En effet,
quoique leur utilité foit de la derniére évidence, cette con-
fideration feul, ne fervit pas affez forte pour convaincre
l'homme qu'il eft dans une néceffité indifpenfable de les
pratiquer, toutes les fois qu'il voudroit renoncer aux
avantages qui reviennent de leur obfervation, ou qu'il
croiroit avoir en main, des moiens plus propres à avancer
fes intérêts. (Vide Barbeyrac's Puffend. 1. 2. ch. 3. Sec.
20.) Again, Sans la Divinité, on ne voit rien qui impoſe
un neceffité indiſpenſable d'agir, ou de ne pas agir d'une
certaine maniere. Pref. 23.
moſt
95 OBLIGATION OF NATURAL LAW.
J
moſt profound deductions,) by which it is
held, that the obligation in queſtion arifes
from God himfelf; who in quality of Crea-
tor and Conductor of human nature, pres
Scribes to man with authority, the obſervance
of the law. (q) Being the author, it is faid,
of nature and reafon, whatever is commanded
or forbidden by them, is commanded or for-
bidden by him; not that he is ſuppoſed ab
initio to have revealed himſelf ſenſibly to the
world, or to have pronounced certain things
to be good and others to be bad, and to have
commanded the one and forbidden the other, in
the declared quality of LEGISLATOR; but mere-
ly, and by inference, as the author and go-
vernor of nature. (r) All this is made mani-
feft,
(9) Il faut donc neceffairement poſer pour principe, que
l'obligation de la loi naturelle, vient de Dieu même, &c.
Id. Ib.
(r) Grotius (D. J. B. P. 1. 1. 10. 1.) makes Natural
law to flow from God as the Auctor Naturæ; and this fenti-
ment was broached long before him by SUAREZ in the
following paffages: Ergo fine dubio, Deus Effector, et
quafi Doctor legis naturalis. Non tamen inde fequitur, ut
fit Legiflator, quia Lex Naturæ, non indicat Deum uf
præcipientem; fed indicat quid in fe bonum et malum,
ficut vifio talis objecti, indicat illud effe album aut nigrum.
Et ut effectus Dei, indicat Deum ut Auctorem, non tamen ut
Legiflatorem;
OBLIGATION OF NATURAL LAW: 97
feft, they affirm, by reafon alone; and not only
this, but the end he propofed to himfelf in
the creation of the world is demonftrated,
through the fame medium, to be his own
GLORY, as well as the happineſs of men ;
which glory they go on to fay, confifts in
manifefting his perfections, his power, his
goodneſs, his wifdom and his juftice. (s)
Thus there is no occafion for a particular
REVELATION to enforce the law; fince it is
indifferent whether God clothes himſelf in a
Legiflatorem; ergo confendum erit de lege naturali.-De
Leg. ac Deo Legiflat. 1. 2. c. 6. Sec. 2.
Again. Legem naturalem omnino pofitam effe in di-
vino imperio, vel prohibitione, procedente a voluntate dei,
ut Autore et Gubernatore, &c. Id. Sec. 4.
See alfo the whole of Cap. 6. 1. 2. of Suarez, where he
confiders the queftion An lex naturalis, fit vere lex divina
præceptiva ?
(s) La fin que Dieu s'eft propofée par rapport à fes
Créatures, et en particulier par rapport à l'homme, ne peut
etre, d'un coté que fa Gloire, et de l'autre, que la perfec-
tion et le bonheur de fes créatures, autant que leur Nature
ou leur Conſtitution les en rend capables. Ces deux
vues fi dignés du Créateur, fe combinent, et fe réuniffent
parfaitment. Car la Gloire de Dieu confifte à manifefter
fes perfections, Sa Puiffance, Sa Bonté, Sa Sagelle et Sa
Juftice.-Burlem. Du D. Nat. 2. 2. 3.
VOL. I.
H
human
1
98
OBLIGATION OF NATURAL LAW.
3
human form, and pronounces it with his own
mouth; or makes ufe of the intervention of
fome inſpired perfon; or merely contents him-
felf with difcovering his will in the fimple
precepts of right reaſon. (t) Nay farther,
although all the world fhould not be able
to make out thefe precepts, ftill, it is held,
that all the world are not the lefs bound to
obferve them. (u)
To this reafoning however, (if it is meant
to go the length of obliging all mankind to
the obfervance of one particular fet of moral
actions,) the ſame arguments are applicable,
as were applied to the theory of an uniformity
of perceptions and feelings.-For if the fact
actually is, that mankind do not agree in alf
thefe particular deductions refpecting natural
(t) Puffend. 1. 2. C. 3. Sec. 20.
(u) Mais que qu'une Loi pour avoir force d'obliger,
doive neceffairement étre notifiée à ceux qui dépendent du
Législateur; & que tout le monde ne foit pas capable de
découvrir le véritable fondement des loix naturelles, et la
liaifon neceffaire qu'elles ont avec la nature humaine, ni de
les deduire methodiquement des principes de la raiſon:
Elles ne laiffent pas pour cela d'obliger tous les hommes;
&c. Puffend. Ib.
religion,
PARSONS
LIBRARY
OBLIGATION OF NATURAL LAW.
University of
MICHIGAN
99
religion, it cannot be expected that the obli-
gation derived from that religion to obey one
particular moral fyftem, is to be univerfal:-
And I am free to own, that what is afferted,
is above my comprehenfion, that although
theſe deductions are not to be made out by
every one, ftill, that every one is bound
to act as if they were. For it is thus fup-
pofed in the fame breath, that religion is
only to be made out by reafon; and yet that
if it is not fo made out, it fhall ftill exift in
all its authority.
That there is fuch a thing as religion, dif
tinct from REVELATION, few indeed can
venture to difbelieve. That all, or nearly
all perfons have thought alike of it, is too
plainly againſt experience to need much
proof. Yet it fhould be demonſtrated that
all, or nearly all, have had the fame ideas of
it, before any uſe can be made of it to thew
that the obligation upon all to obſerve one
particular and certain fet of duties, can be
derived from it.
Now it is of no confèquence to be able to
demonſtrate to ourselves, the abfurdities of all
religious
H 2
100 OBLIGATION OF NATURAL LAW.
That
religious notions oppofite to our own.
demonſtration will have the effect of pro-
ducing obligation upon us;
impoſe an obligation upon
but can never
others who do
not, or can not fee the force of it; and
fhould others, fetting out from different pre-
mifes, arrive at different or oppofite conclu-
fions; there will be an equal obligation upon
them, to the performance of things directly
oppofite to what we conceive it a duty to
practiſe ourselves. In vain therefore is it
faid, or demonſtrated ever ſo plainly, to their
own fatisfactions by particular men, that
there can be but one notion of a Deity, if
fuch a propofition means to extend the im-
poffibility of their being feveral notions of it,
to the whole of mankind; fince (according
to our old obfervation) it is fact alone which
muſt determine that point. Speaking accu-
rately, we may fairly ſay that among CHRIS-
TIANS, or perfons who fee elementary things
in the fame point of view, there muſt be a
conformity; but whether that conformity
must be univerfal, among all mankind, whether
Chriſtians or not, we can only determine by
analyſis, (if I may ſo ſay,) that is, fimply
by examining the fact, whether Men uni-
Mou
verfally
T
OBLIGATION OF NATURAL LAW.
verfally fee elementary things in the fame
point of view. (w)
Thoſe who have made this examination,
are not to be told the immenfe diverfity of
fentiment to be found upon this moſt inter-
eſting ſubject: and whether we take the uni-
form difference between favage and civilized
life; or the difference between the notions
of civilized men themſelves; we fhall find
there is nothing fo diftant from conformity,
as the opinions which we fhall there be able
to diſcover.
The naked and folitary Indian, who had
beheld and reverenced the courſe of the Sun
and Moon; had trembled at the lightening,
and liſtened fearfully to the ftorm; though
he might be convinced there was fome Power
in the univerſe far fuperior to his own, could
hardly arrive at thoſe conclufions concerning
the intentions, the bounty and the justice of
providence, which are fuppofed by the argu-
(w) It is the fame argument with that which holds the
neceffity for an uniformity of premifes, in order för Reaſon
to work in one and the fame manner.
H 3
ment
102 OBLIGATION OF NATURAL LAW.
ment to flow from nature alone; far lefs
would he, or does he imagine, that he is
bound to obſerve thoſe actions which civilized
men call moral, by the abfolute commands.
"of a Deity, of whom he is known to have
had fuch grotefque, and often fuch horrid
ideas.
Now according to the whole tenor of the
foregoing arguments, we fay it is fair to fup-
pofe that uncivilized, as well as civilized na-
tions believe the religious notions which in-
fpire them, to be the dictates of their nature ;
and although civilized reafon fhould demon-
frate, ever fo much to its own fatisfaction,
that uncivilized minds are wrong in their
ideas; yet unleſs the latter agree that they
are wrong, nothing fatisfactory can be deter
mined.
3
The atrocities and difgufting practices that
every where take place under the notion of
religion, among nations that are held to be
uncivilized, are too notorious to need much
defcant,
It
OBLIGATION OF NATURAL LAW. 103
It is fufficient to obferve, that if reli-
gion diftinct from Revelation, is fuppofed to
enforce the duties of brotherly love ; of
univerfal philanthrophy; the preſervation of
our lives; and the general peace, and good
order of mankind; it is well known that the
religion of men in certain fituations, has
almoſt uniformly produced the very reverſe
of all theſe. The neceffity of dying violenț
deaths in battle; (x) or upon the tombs of
relatives or maſters; (y) the immolation of
captives and ftrangers to Gods known, and
unknown; the flaughter of fellow-creatures
to the manes of friends; the offering of our
(x) The religious duty of all our Scandinavian Ancef-
tors, whofe paradife could only be obtained by ſuch means.
Vide infr. chap, vii,
(y) The cuſtom of the Indian Widows already taken
notice of: Of the Inhabitants of Agag, in Africa, the
wives of whofe king are all forced to poifon themſelves
upon his death. (Picart. Cerem. Reig. 4. 495.) of the
Floridans who buried Slaves with their Mafters. Id. 3. 133.
and of great variety of others, particularly the African
Nations, as is well known.
H4
very
104 OBLIGATION OF NATURAL LAW.
32
very children, and that in a manner the moſt
horrid and barbarous (~); the moſt ſhameleſs
}
(≈)
viola-
(z) The Macaraguans, the Mexicans, the Peruvians
and Formofans, facrificed all their prifoners of war. (Picart,
3. 147. 168. 4. 173.) At Campeachy the Spaniards, when
they visited it, found Idols of horrid fhapes, and near
them feveral dead bodies newly facrificed. (Conq. of
Mex.) The antient Marfellois uſed even to pamper their
victims for a whole year, in order to fatten them before
they facrificed them. (Pic. 3. 148.) The Inhabitants
of Tanchuth had a Goddeſs whom they called Manipa,
who had nine heads, and to whofe honour, on certain days
of the year, a ſtout young man uſed to fally forth into the
ſtreets and kill every one he met, and their bleeding bodics
were immediately borne an offering to this terrible deity.
Ariftomenes, the Meflenian, facrificed three hundred Spar-
tans together, with their king Theopompus, to Jupiter of
Ithome. The bloody facrifice made by Achilles to the
manes of Patroclus, must be well remembered: Even the
wife Themiftocles offered facrifice of Perfian Captives to
obtain fuccefs against that nation. The Carthaginians it
is well known uſed to offer their Children to Saturn, by
placing them on the hands of the Idol, which by being in-
clined downwards let them roll into a burning furnace
below. Bacchus had an altar in Arcadia, upon which
young Damfels were beaten to death. The Mexicans
adored an Idol made of all the feeds of the earth, kneaded
with the blood of young children, whoſe hearts were torn
out of their bodies and offered as an acceptable gift to the
Idol thus made. (Pic. 3. 147.) They had alfo a Goddess
}
called
OBLIGATION OF NATURAL LAW. 195
+
violations of decency; (a) are the charac-
teriſtic barbarities of the Pagan religions.
It
called Tozi, whoſe abfurd hiſtory is, that ſhe was deifyed by
their great God Vitzliputzli, who made them firft demand
her of her father as Queen; fhe was then put to death, and
flayed, and a young man covered with her fkin, and thus
being tranflated from Earth to Heaven, demanded the
cruelleft facrifices; namely, human Creatures. (Conq. of
Mex.) When the corn began to fpring among thefe
people, they facrificed a boy and a girl to Tlalock, the God
of the Waters. When it was two feet high, four chil-
dren; when they entered the great lake on a feſtival, a boy
and a girl were drowned in honour of it; (Pic. 3. 154.)
and when they went to war, five boys and as many girls,
three years old, were offered to their God Quitzalcoalt.
(Brought. voc. Quitzalcoalt.) In thefe cruel facrifices of
children, they were imitated by their neighbours the Peru-
vians. (Pic. 3. 188.) and the fame cuſtom was purſued by the
Formofans, who believed that the fouls of the wicked paffed
into Dæmons, whom they were bound to implore with
facrifice and fupplication, the former of which confifted
often of Infants. (Defcrip. of Formos. ch. v. 17.) The
Oftiacs, a fet of Tartars, worshipped what they called the
old Man of Oby, to whom when they went a fiſhing they
offered prayers for fuccefs: but if they failed, they ftripped
him naked, whipped him, and threw him into the dirt as
an old, impotent, defpicable God. (Brought, vac. Oby.)
(a) The Priefteffes of Formofa, after devout prayer,
uſed to ſtrip themſelves naked on the top of the Pagoda,
and put on the moft lafcivious geftures, in order the better
ta
1
106 OBLIGATION OF NATURAL LAW,
It is faid however, that theſe are either
degeneracies and corruptions of our reafon;
or the notions of men who have never im-
proved their faculties by the advantages of
civilization, which if they had poffeffed, it is
affirmed they would have thought as we
do : (b)
For a moment let it be fo, and the point
we labour at is therefore accomplished. For
when we talk of the world we fhall then
only mean the civilized world; and not only
to allure their Gods to hear them. (Pic. 4. 270. Brought.
Hift. of Relig. voc. Juibas.) The Houames, a religious
fect of the Arabians, after prayers in their tents at night,
ufed to cohabit in the dark with the first perfon they met,
whether father, mother, brother or fifter. (Ricaut. Hift. of
Ott. Emp. and Thevenot's Travels.) The Moabites and
Midionites, people far from a ftate of Savigifm, were re-
proached with worshipping the famous Idol Baal-Phegor
(to whom even Solomon erected an Altar,) in a manner
fo difgufting" eo quod diftendebant coram eo foramen
podicis, & ftercus offerebant." (Broughton, voc. Baal,
Pheg.)
st
(b) Dira-t-on que ce fuffent la des loix du Droit des
Gens, qui obligaffent véritablement les Nations? 'Il faut
plutôt les regarder comme des pratiques barbares, dont
toute Nation jufte et bien policée doit s'abstenir. (Burlemaq.
Du D. Nat. 2. 6, 8.)
↑
that,
OBLIGATION OF NATURAL LAW, 197
3
that, but the world civilized after our own
ideas; fince many of the examples quoted, are
taken from nations comparatively advanced
in improvement. Thus, a difference is made
between two parts of mankind; and what we
held is found to be true, that it was an inac-
curacy to ſay the laws in queftion as far as
they related to a particular fyftem, were binding
upon ALL.
But I fear we cannot ſtop here, fince even
if we confine ourſelves to what we call
civilized life; we fhall find as much diverfity
in the opinions of men who have dedicated
their lives to the cultivation of their reafon
and the ſtudy of mankind by travel and
meditation, as between the notions of favagifm
and refinement.
The learned reader is not to be told the
various abfurdities, the imaginary vifions,
and the fometimes impious opinions, that
have been fent abroad under the form of
Theories of Religion, by all thoſe who have
lived, or live without the benefit of REVE
LATION.
One fet of the antient Philofophers, believed
the world to have been formed by the Gods
3
after
08 OBLIGATION OF NATURAL LAW,
·A·
after much labour. Another by the fortuitous
concourfe of atoms. The one trufted in a
certain providence, that was always at work
for the protection of the wife: The other, that
the Gods, if there were any, gave themſelves
no trouble about mankind, but bufied them-
felves foley with their own pleaſures.
third fet, upheld the doctrine of neceffity and
predeſtination, which renders all care about
pur actions uſeleſs. A fourth conceived the
tranfmigration of fouls; and almoſt all con-
curred in a plurality of deities, the licenti-
pufneſs of whofe manners, and whoſe violent
and human paffions, muft have generated
ideas of them, which it is not more abfurd
to imagine of an all wife and juft Deity,
than they would be incapable of producing
any good effect upon morals,
}
Whole tribes have been known, as well
civilized as uncivilized, to have no idea of
God or Religion at all; as the Inhabitants
of Soldania in Brazil; of Boranda, and the
Caribbee Iſlands, and the great Sect calling
themſelves by way of diftinction the Learned
among the Chineſe; a circumftance much
dwelt upon by Mr. Locke, to prove the non-
exiſtence
OBLIGATION OF NATURAL LAW toy
exiſtence of Innate Ideas. (c) In the Empire
of Japan there is a religion called the Sinto
Religion, the followers of which place their
whole happineſs in preſent and ſenſual enjoy--
ments. (d) The Turlupins, an infamous
Sect of the fourteenth century in France,
feemed to imitate the conduct of the antient
Cynics, in holding that they ought not to
be aſhamed of publicity in the performance
of what was enjoined by nature: they alſo
taught that they were arrived at a fate of
perfection, and were freed from all ſubjection
to divine law. (e)
One proportion of mankind believe in a
principle of good, another in a principle of
evil. (ƒ)
(c) Eff. on Hum. Und. B. 1. ch 4. Sec. 8. It is right
however to mention that modern difcoveries affirm the Lite-
rati of China to be Theifts.
(d) Broughton. voc. Sintoifts.
(e) See Mezerai. ch. 5.
(ƒ) The doctrine taught by the Manichæans; (Bayle
voc Manes) and the Magi of the Perfians; the latter of
whom characterized the two principles under their famous
Gods Oromafdes and Arimanius. (Broughton. Hift. of Re-
lig. voc. Magi.) Oromafdes was fuppofed to have created
the other, merely becaufe, having no one to oppofe him, he
could acquire no glory. (Id. voc. Arim.)
The
tto OBLIGATION OF NATURAL LAW.
+
The firft imagine every thing is for the
beft; the laſt that we are born to be mifer-
able. The Egyptians (a cultivated people)
worſhipped almoſt as many Gods as there
were Animals. Many other nations of Africa
pay Divine Adorations to Serpents; many of
them to the Devil. The Perfians worshipped
Fire, the Egyptians Water. (g) ·
In Formofa it is thought contrary to religion,
and the law of nature, for women to bear chil-
dren before fix and thirty. Yet they are
abfurdly allowed to marry, and if they prove
pregnant they apply to a prieſteſs who vio
(g) The God of their Waters was Canopus, concerning
whom a ridiclous legend is extant. The Chaldæans
upholding the fuperiority of their God Fire above all other
Gods, the proof of which they deduced from the uniform
power of fire to deftroy every thing thrown into it; an
Ægyptian Priest made an Idol of Canopus with a large
earthen belly pierced full of holes, which were ftopped with
wax, and the Image filled with water. A conteft with
the God of the Chaldeans was demanded: the Image was
thrown into the fire, which as it melted the wax, let out
the water and was extinguiſhed, to the great triumph of
Canopus, whoſe fame was inftantly bruited through all the
adjacent countries. (Suidas voc. Karoo-& Picart, 3.
231.)
lently
!
OBLIGATION OF NATURAL LAW." itt:
lently brings away the foetus. (b) The Ar
menians worshipped a Goddefs called Anaitis,
to whom the daughters of the greateſt men
of the Country were dedicated, who as the
greateſt honour they could pay to her, profti-
tuted themſelves to all thoſe who came to offer
facrifice; after which they were eagerly
courted in marriage as having acquired extra
ordinary fanctity. (i) The Mozdarians,
Sect of the Mahometans, held the impious
doctrine that God could even be a liar and
unjuſt; (k) And the Chriftians themſelves,
whenever they have departed from the plain
precepts of the Gofpel, have degenerated into
doctrines equally abfurd, and fatal to mo-
rality. Thus, the Prifcillianifts in the fourth
century, held the principle of Evil with the
Manichæans, and that it was lawful to take
falſe oaths in ſupport of our interefts. (/) The
Ophites, in the fecond century, imagined
Chrift to have been the Serpent that tempted
Eve, and therefore paid adorations to a
(h) Picart. 4. 276. 7.
(i) Brought. Hift. of Relig, voc. Anaitis.
(4) Id. voc. Mozdar.
(1) Prifcillian was ordained a bifhop (of Avila) and.
became formidable. (Baron. Ann. 381.)
Serpent
112 OBLIGATION OF NATURAL LAW.
[
Serpent in adminiftering the facrament, as
well as to Seven Dæmons whom they were
reproached with worshipping. (m) The
Gnostics (the very etymology of whoſe name
fignifies enlightened,) denied the world to
come; held the two principles of good and
evil, and a difference between God and the
Creator of the world. (n) The Simonians,
the followers of Magus, denied the refurrec-
tion of the body, and with the Gnostics and
Nicolaitans allowed the promifcuous ufe of
women.
Laftly, within our own view, the Legi-
flators of millions in a neigbouring nation,
when they refolved to carry the dictates of
reafon with reſpect to religion (according to
their ideas of them) as far as they would go;
ended in aboliſhing all notions of a future
life, or of a divine moral Agent. They did
the firſt, by voting that Death was an eter-
nal fleep; by which they renounced the im-
mortality of the foul: They did the laft, by
voting that nature alone fhould be the
object of their worship, by which they re-
(m) Brought. voc. Oph.
(n) Id. voc. Gnoſt.
nounced.
OBLIGATION OF NATURAL LAW. 113
nounced their allegiance to any fort of Deity
at all.
And thus, under the notion of a religion
taught by nature and reafon, (and even after
we have received the light of the Goſpel, if
we degenerate from it,) there is nothing fo
abfurd, fo uncouth, or fo wicked, as not to
find ſupport ſome where in the world, either
in the civilized or uncivilized part of it. And
hence my Lord Shaftſbury, at the fame time
that he contends very ftrenuouſly for natural
virtue as forming part of our Syftem, is obliged
to own that a falſe religion wherein the cha-
racter of the Deity is evil, will make EVIL
to be confidered as GooD. (0) However clearly
therefore we may be able to demonftrate the
truth of our own ſyſtem, upon principles
even drawn from natural law, the force of
which is evident to us; I cannot conceive
how it can follow, if thofe principles are not
allowed by all the world, that all the world
fhall be bound to fubmit to them as if they
Natural religion therefore can do as
little towards enforcing the obligation upon
were.
(0) Inquiry concerning Virtue, 51.
VOL. I.
I
all
114 OBLIGATION OF NATURAL LAW.
all, to purſue one particular fyftem of con-
duct, as natural feelings or confcience; fince
neither the one nor the other prevail in fuffi-
cient univerfality, to warrant the affertion that
the whole world are bound by them in the fame.
way. We may therefore not unreaſonably
make uſe of the fame argument againſt Natural
Religion, diſtinct from Revelation; as that
which has been uſed againſt Natural Morality,
diſtinct from natural religion. Some of our
antagoniſts themſelves allow that morality
without religion is nothing but a houſe built
upon the fand; (p) and are forced to own
the inefficacy of Pagan religion, when with
an antient father of the Church, they com-
plain that it made an illegitimate feparation
between morals and divine worship; between
mere miniſters of ceremonies, and the Teachers
of wiſdom. (9)
Now then, let any man fet himſelf to
examine what may be meant by that which
(p) Mais faites le plus beau Syfteme du Monde, fi la
Religion n-y-cntre pour rien, ce ne fera guerres, pour
ainſi dire, qu'une Morale Speculative, vous baterez fur le
Sable. Barbeyr. Pref. to Puffend. 23.
(q) Id. Ib.
is
OBLIGATION OF NATURAL LAW. 115
is ufually called MORALS, if confidered as
independent of revealed religion; and he
will probably find, that it does not mean
merely one certain mode of action, as prac-
tiſed by particular men; but any ſet of ac-
tions, which any clafs of men may chufe to
devife, provided they do not take their
rife from licentioufnefs, or abfolute will,
or caprice; but from regular principles, fol-
lowed up by practice. So that even though
one claſs of men fhould be able to prove to
themſelves, that the principles affumed by
another clafs are falfe; yet if they cannot
prove it to the fatisfaction of the latter, the
latter are not the lefs bound to continue to
obferve them.
And this will be evident to any one who
confiders the original meaning of the term
morals, or MORES; which is nothing more
nor leſs than CUSTOM, PRACTICE, ACTION;
proceeding upon fome known rule or infti-
tute. (r)
The Inftitute itſelf is indeed univerfally
intended to produce the happinefs, or in
other words, the GooD of thoſe who purfue
(7) Gefner. Thef. Ling. Rom. voc. Mores.
I 2
it ;
116 OBLIGATION OF NATURAL LAW.
it; becauſe the hiftory of man proves to us,
that he propoſes, happiness or good, as the end
of all his Conftitutions; but what the Cha-
racter of the Inftitute fhall be; that is, what
particular actions fhall be forbidden, and what
enjoined; will depend upon the varying ideas
of happineſs, or good, in thofe that form it.-
That happinefs is the fame thing as what is fo
well known under the name of the SUMMUM
BONUM; and it has been well defined to be," a
thing which is defirable; not for fomething
elfe, but for itſelf; that is, it is the end to
"obtain which, every thing that is done or
"commanded, is but as the means. The Sportf-
"man believes there is good in the chace: the
man of Gaiety in his intrigue; even the Glut-
cc ton in his meal. We may juftly aſk of theſe,
66
why they purfue fuch things? but if they
"anfwer, they purfue them becauſe they are
"GooD; it would be folly to afk them far-
65
ther, why they purfue what is GooD? It
"would feem then, the grand queftion was,
"what was GOOD? For whether it be the
"intrigue, or the chace, or the meal, may be
fairly queftioned, fince men in each inſtance
are far from being agreed." (s)
66
โด
(s) Harris Hermes. p. 297. 3d Edit.
Such
OBLIGATION OF NATURAL LAW. 117
Such is the opinion of a writer, of no
fmall fame for clearness of intellect; and
upon the fuppofition that his opinion is juſt,
we may carry the principle it contains, from
Individuals to Nations; and although we
may diſcover that the end propoſed by the
laws, maxims, and cuftoms, of different races
of people are very different from one another,
we may be warranted in obferving that all of
them while independent of one binding Re-
ligion, are equally Moral, fo long as they
bona fide believe that GOOD is their end.
Hence therefore, the morality of any par-
ticular fet of actions is not impugned, becauſe
they are objects of horror and deteftation
to people purſuing another fet; and thoſe of
mankind who have not had the advantage
of one common religion, or one common
code of laws, to prefcribe to them with
AUTHORITY; may, and do often tear one
another to pieces, equally and alike upon
principle, and the purfuit of what, abftract-
edly confidered, is RIGHT. For RIGHT in
general terms, to uſe the language of one of
the moft fenfible expounders of the Science
before us,
"is nothing more than confor-
I
1 3
66
mity
·
18 OBLIGATION OF NATURAL LAW.
CC
mity to the rule we go by, whatever that
"rule may be." (t)
"VIRTUE," fays another refpectable autho-
rity, "is the conformity to a rule of life,
66
For
directing the actions of all rational creatures.
"with reſpect to each other's happineſs; to
"which conformity every one is in all caſes
"obliged:" (z) But granting, what cannot
be denied, the obligation to conform to the
rule once established; ftill, what the rule fhall
be, is left unfettled; and the obligation upon
all, to obferve one particular conduct, remains
floating in as much uncertainty as ever.
we cannot too often obſerve, that the con-
-teſt all the way through, is not ſo much to
determine how obligation to obey a par-
ticular code is produced; as to fhew that
there may be various codes, according to the
varying ideas of men; a pofition which
ſeems to be allowed in another work, by the
laft mentioned author himfelf, when after
having taken notice of the difparity between
(t) Payley, Mor. Phil. B. 2. ch. 1.
(u) Bp. Law's Pref. to King on the Orig. of Evil.
the
1
OBLIGATION OF NATURAL LAW. 119
the abilities, tempers, opportunities, fitua-
tions in the world, or governments under
which they live, which is to be found in dif-
ferent men; he emphatically adds, " To
(6
fpeak therefore of one, fixed, immutable, and
"univerfal law of nature, is framing an
"imaginary fcheme without the leaft founda-
"tion in the nature of things, directly con-
trary to the prefent order of the WHOLE
"CREATION." (w)
ઃઃ
(w) Confiderat. on the Theor. of Religion, p. 4
"Virtue," fays Archdeacon Paley, "is the doing good to
(
mankind, in obedience to the will of God, and for the
"fake of everlaſting happineſs." (Mor. Phil. B. 1. ch. 7.)
This definition is thorougly found. But the hope of
everlaſting happineſs can be made out with certainty, only
by revealed religion. Nor can there be any other motive
from Nature alone, fufficient to oblige us to virtue, ſhould
we not be inclined to it, unleſs it were fhewn, (which never
has been done,) that virtue is not only the beſt means of
obtaining Happineſs, but is in fact the fame thing with it.
The definition is no where incompatible with our Syſtemi,
and in part fupports it.
CHAP.
120
FOUNDATION OF
CHAP III.
FOUNDATION OF THE LAW OF NATIONS.
!
AND thus from any thing we have yet
feen, neither natural CONSCIENCE, nor even
RELIGION, confidered a-part from REVELA-
TION, are able to produce that certain, uni-
verfal, and immutable ſcheme of duties, which
we muſt ſuppoſe to be acknowledged by the
whole univerſe, before we can make out from
natural law alone, the particulars of what is
meant by the definition of the Law of Nations,
which we confidered in the beginning of the
laft Chapter. (a)
It was in mercy to manknid, divided, led
aftray, and afflicted with theſe difcordant ideas
concerning the only thing, which, if they all
thought alike of it, would indeed force them
to conſider one another as brethren: it was to
remedy, either the inefficacy of the natural law
to produce a general and uniform virtue; or the
total lofs of the law itfelf; that, that high and
glorious gift contained in the CHRISTIAN dif-
penſation was beftowed upon the world.
(a) Of Prefident Monteſquicu.
By
THE LAW OF NATIONS.
121
By this, more certain indications of the
power, and attributes of the Creator were
given to men.
Their duty was fet before them with pre-
cifion, and fimplicity; and above all, reaſons
for it were affigned, which, where they are
allowed, muſt put an end to all doubt, and
carry obligation to the moſt ignorant mind.
The very exiſtence of this difpenfation,
proves to us, I think, the want of power in
the ſyſtem called the law of nature, to enforce
thoſe moral duties in all their univerfality, for
the univerfality of which fo much is contended.
-For why, might it be aſked, was this won-
derful revelation beſtowed upon mankind, with
all its ſplendid train of miracles, and martyr-
doms, and the long continuation of the divine
interpoſition, which has afforded ſo many han-
dles for Infidelity to lay hold of: if every thing
which it was meant to bring about with re-
fpect to Morals, could have been done without
it? Why alfo that complaint which with the
greateſt juſtice is in every body's mouth, that
if Religion were banished, the whole people
would be corrupted; the practical truth of
which
122
FOUNDATION OF
which is brought home to our own times in
melancholy force, from the contemplation of
what has paffed among the French; and the
confideration that nearly all thoſe amongſt
ourfelves who ſeek to diſturb the peaceful
order of things, are profeffed Deifts, or fol-
lowers of Reaſon; that is, whofe moral prin-
ciples can ſeldom be fixed or generally under-
ftood.
Now although very refined Intellect, at-
tended with the advantages of much leiſure
and meditation, has fometimes been able to
form a very virtuous fyftem of morals; and
one or two were formerly able to make out
fomething like the doctrine of rewards and
puniſhments; yet it was fo enveloped in ob-
fcurity, and fo fragile, from infufficient ele-
mentary principles, that the generality of men
could not enter into them, becauſe they could
not feel their force; and the generality of
men can not be ſuppoſed to be bound by laws
which they do not underſtand. Whereas
there is this invariable advantage which the
meaneſt Chriſtian has over many of the
proudeft Philofophers; that he can immedi-
atcly ſet forth the plaineft, and at the fame
}
tine,
THE LAW OF NATIONS.
123
time, the moft forcible motives for living a
life of virtue; while the latter is often loft
in paradoxes, or forced to deduce his con-
fequences from pofitions of his own af-
fuming. (b)
It may be faid, and with great reaſon, that
according to our own principles, the laws of
Chriſtianity itſelf are not binding upon thoſe
who
(b) The moft exalted ftate of human reaſon, fays Dr.
Middleton, is ſo far from fuperfeding the ufe, that it demon-
ftrates the benefit of a more explicit REVELATION.
though the natural law, in the perfection to which it was
carried by Cicero, might ferve for a fufficient guide to the
few, fuch as himſelf, of enlarged minds, and happy dif
pofitions; yet it had been fo long 'depraved and adulterated
by the prevailing errors and vices of mankind, that it was
not diſcoverable even to thofe few, without great pains and
ſtudy, and could not produce in them at last, any thing
more than a hope, never a full perfuafion; whilft the greateſt
part of mankind, even of the virtuous and inquifitive, lived
without the knowledge of God or the expectation of a
Futurity. Middlet. Life of Cicer. 2. 562. note x. Quarto.
The neceffity for revelation to minds that are not able to
make cut the law by reaſon, is alſo acknowledged, as it were
in ſpite of themſelves, by Suarez, and Puffendorf, thofe great
fupporters of the contrary opinion. (Suarez. De leg. ac Deo
legifl. L. 2. C. 4. S. 9. and Puffen. 2. 3. 20.) The latter
there confeffes that there is fome reaſon to imagine that God
himſelf taught the primitive men the chief heads of the law,
which
124
FOUNDATION OF
who have never received them. We agree to
that propofition, and it is our very point that
we ſhould do fo; fince we obferved in the
beginning, that if the Natural law was not
diſcoverable with exactnefs; if it ſhould prove
to be little underſtood, or fo incrufted with
prejudices or ignorance, that we could not
which were afterwards fpread and preferved by Education.
Thoſe indeed who do not attribute fo much as Lord Kaims
to the brute ignorance which the Syftem of the State of
Nature fuppofes, may reaſonably believe in the Creed of our
fathers, and imagine that
God or Angel Gueſt,
With Man as with his friend, familiar ufed
To fit indulgent.
If ſo, a fair queſtion may be raiſed, whether all religion was
not originally revealed. (See a little tract written by Dr.
Doeg, entitled Letters on the Savage State, and addreſſed to
Lord Kaims.) A doubt is there not unreaſonably ſtarted,
whether it is even poffible for Savagiſm to improve, if left
to itself. Bp. Butler himſelf in another work allows, that
Natural Religion before Revelation, was fo clogged with
Superftition, "that it was totally corrupted, and in a manner
loft." (Analog. Part II. Ch. 1.) Now the imperfection of
Natural Law, or Natural Religion, as the foundation of any
other law, is equally manifeft, whether we fay that there is
really no fuch thing; (which we do not pretend to affirm ;)
or that it is not to be made out in fufficient clearness, while
fo foul and obſcured with prejudice and fuperftition.
come
THE LAW OF NATIONS.
125
come at it with any certainty; we muſt con-
tent ourſelves with fuch a fort of obligation,
and fuch a plan of conduct, as different claffes
of nations adopt, according to their different
Religions or Syftems of Morality. When
theſe are known, whether they are Chriftian,
or Mahometan, or Pagan, we may give a to-
lerable gueſs at the Spirit of the Character of
the people, and the genius of thofe laws which
govern their intercourfe. When they are not
mentioned; and we content ourſelves with
afferting a particular, and ramified duty, becauſe
recommended by the laws of nature and reaſon, we
cannot fufficiently depend upon them to be fure
of the power of their obligation, or that the pre-
cife conduct recommended is in reality binding.
By fhewing therefore the neceffity and the
fuperiority of the Chriftian Revelation, we
meant fimply to point out, the impoffibility
of the law of Nature to carry with it an
obligation to purfue thofe duties, which are
in general only obferved under the obligations
impofed by CHRISTIANITY; not to affert
that the latter obligations extended themſelves
to all mankind, even to thoſe who were ig-
norant of them.
I
Whence
}
26
FOUNDATION OF
1
Whence then are we to derive the origin
of that obligation which is ſuppoſed to bind
us? Where are we to look for the rule which
is to direct the conduct of Man towards
Man; and of Nation towards Nation?
We have anſwered, to that Religious and
Moral Syſtem, whatever it may be, which
the different men and nations that are in the
habits of intercourfe with one another, con-
ſider of force ſufficient to govern their various
actions. Of theſe we may be allowed to ſpeak
with certainty, fince of theſe, the firſt prin-
ciples, or in other words, the premiſes, are
ſuppoſed to be ſettled and generally under-
ftood by thoſe who purſue them ;
while
others, which are too rafhly extended to all
mankind; áre for the moft part fluctuating,
and even after being fixed, are liable to be
changed. It follows therefore, if our prin-
ciples are allowed, that the greater number of
the writers on the fubject, high and deſerved
as is their reputation, have attempted too
much in fetting out from fuch vaft and ex-
tenfive principles; or in laying down the
laws of Nations, as if they were the laws of
the World.
General
1
THE LAW OF NATIONS.
127
General principles fhould undoubtedly be
extenſive; but they fhould not be the leſs
certain for being fo; and if they are too ex-
tenſive, ſo as to become vague, or conteſted,
the Theories which are founded upon them
are liable to be miſunderſtood, perpetually
difcuffed, and even overturned.
Rejecting therefore the laws of NATURE
and REASON (as the fole foundation of the
law of NATIONS,) becauſe we do not con-
ceive them powerful or fixed enough, to bear
the fabric that is erected upon them; we con-
clude that what is commonly called the law
of nations, is not the law of all nations, but
only of fuch SETS or CLASSES of them as are
united together by fimilar religions, and
ſyſtems of morality. It will depend therefore
upon the foundnefs, or unfoundness of thofe re-
ligions and ſyſtems, whether particular na-
tions will purſue the particular ſcheme of
morals, which with us are called virtuous, or
not. If the ſyſtem is well founded, we may
expect the law to be of one certain caft, and
of a virtuous character. If it is not well
founded, the law must be uncertain, fluctu-
ating, and of a Character perhaps deteſtable tò
many
128
FOUNDATION OF
many other nations.
other nations. As a plain confequence
it will follow, that, if two Syſtems are totally
different, (which may fometimes happen,) (c)
the CLASSES of nations which are governed
by them, can have very little like a law, com-
mon to both, to direct their intercourſe, and
may even therefore be always, or almoſt al-
ways, in a ſtate of hoftility. Hence alfo a
corollary may be deduced, that the proportion
of obedience which is yielded by any two
nations to a particular rule of conduct, muſt
depend upon the degree of affinity which there is
between their Religions and Systems of Morality.
With us in Europe, and the nations that
fpring from us, the Moral Syftem is founded
upon REVEALED RELIGION. In other words,
it is the fame with CHRISTIANITY itſelf.
The great plan of our duty; the complexion
of our minds; our ideas of juftice; our foftened
manners: our laws and cuftoms; and confe-
quently the whole force of our moral obliga-
tion, take their rife and colour from the
CHRISTIAN Religion. But if this is fo in all
our private relations; in the "charities of
(c) See the next Chap.
“kindred,”
1
THE LAW OF NATIONS.
129
"kindred," and the character of our municipal
laws; it is but a natural confequence that the
fame leading and effential principles of action,
ſhould influence the whole body of our LAW
of NATIONS. Various other cauſes have no
doubt concurred to produce that difference,
which in the progreſs of our inveſtigation we
fhall probably diſcover between the European
Law, and that of other Claffes of people; and
to theſe we ſhall direct our attention in the
proper place.
For the preſent we content
ourſelves with barely pointing out what ſeems
likely to be the true foundation of every
Law of Nations, as it may appear to govern
the different divifions of the world,
In the next Chapter we mean to come to
the more particular application of theſe prin-
ciples, and to fhew how what is here only laid
down a priori, and in theory, is borne out by-
the practice of mankind. We ſhall there take
a curſory view of the different principles which
feem to actuate various SETS or CLASSES
of people, as they fall into different diftricts,
and obferve different religious and moral
fyftems; which if it cannot be ſhewn, we
confefs that the truth of our Theory, though
VOL. I.
K
it
130
FOUNDATION, &c.
it may not be totally deſtroyed, will be wholly
without fupport.
But farther alfo, if our principles are al-
lowed, the Law in queſtion, muft not only be
different in different diſtricts of the Earth at
prefent; but even in the fame diſtrict, it muſt
have varied in the courfe of time, in propor-
tion as revolutions have happened in the re-
ligious and moral ſyſtems of its nations.
To the examination of this point we ſhall
alſo haſten, and it will be our ultimate taſk,
in order the better to prove the truth of our
poſitions, to trace the whole progreſs and
changes of the law among the European States;
to attempt to point out the cauſes of thoſe
changes; to fettle their chronology; and to
mark the connection and duration of their
effects.
1
CHAP
THAT THE LAW OF NATIONS, &c. 131
1
CHAP. IV.
THAT THE LAW OF NATIONS, IS NOT THE LAW OF
THE WORLD.
WHOEVER has confidered the variety of
Character which is every where the attendant
of Humanity; the different divifions of Men
into different diftricts, and almoſt into differ-
ent fpecies; the diverſity of cuſtoms, of re-
ligion, and confequently of morals; the no-
tions of right and wrong, extremely oppofite
in diſtant places; the prejudices and manner
of life, arifing from Climate or geographical
poſition: whoever has confidered theſe things,
would be led, it fhould feem, to imagine
priori, that there was a marked and pointed
difference, among different claffes of nations,
in their mode of carrying on their intercourſe
together-It has a palpable effect upon the
genius of their civil law, (d) and we may not
unreaſonably believe that it has the fame on
their law of nations; fo that when by chance,
curiofity, or mutual wants, nations that have
(d) See Montefq. Sur les principes qui forment l'efprit
gener. De l'Efpr. des Loix, L. 19.
K 2
never
132 THAT THE LAW OF NATIONS, IS
never heard at all, or heard but little of one
another, come to have communication to-
gether; the manner of that communication
can hardly be the fame with that to which
they have been accuſtomed-I do not here
ſpeak of the mere ceremonial of the meeting;
for that, as might naturally be expected,
would be almoſt as diverſified as their dreſs or
language; but of thofe laws, and notions of
the nature of their mutual rights, which it is
the intereft of all who are concerned to obey,
for the fake of the fafety of the communi-
cation.
The Hiſtory of the World, and the accounts
of obferving travellers, tend very much to
confirm the ftrength of this opinion.
In fome countries, Theft, though prohibited
by the Inhabitants among one another, has
been permitted towards Foreigners. (e) With
one
(e) Among the antient Germans, the inhabitants of the
South Sea Iſlands-The Arabs, and Tartars, &c.
See alſo Bufbequius' account of ſeveral Turkiſh nations
which he vifited, among whom he who was held an ex-
pert Thief was eſteemed a great man, and he who was the
contrary was looked upon as a mere ftock or trunk. Qui
dextro
1
NOT THE LAW OF THE WORLD. 133
one nation, a Stranger has been received with
open arms as a Citizen. By the fame people,
when their political fituation was altered, he
was reduced to captivity. (f) By another he
has been put to death from the mere circum-
ftance of his being a Stranger. (g) With a
third, he is hardly permitted to land, fhould he
come upon the coaft, and never to advance
into the interior. (b) With a fourth, it is
even part of their religion to kill him if he be
a Chriſtian. (i)
When war breaks forth, the varieties of the
modes in which it is purſued are without end.
A Roman thought it right to give notice to
his Enemy, and fummon him firſt to do
Juftice, before he declared himſelf. An Indian
dextro Mercurio furatur, magnus cenfetur; qui nefcit, ut
ftipes et truncus defpicitur: imo vix communi luce dignus
judicatur.-Leg. Turk. Epift. 3.
(f) Vide infra Chap. VI. concerning the Greek and
Roman Law.
(g) By a law of Bufiris in Ægypt, and the cuftoms of the
Scythians who immolated Strangers to Diana.-See Puffend.
reaſoning upon theſe cuftoms. D. de Nat. & des Gens.
2.3.9.
(b) The law of China.
(i) The Mahometan law.-Alcoran, Ch. 8. 40.
K 3
will
134 THAT THE LAW OF NATIONS, 13
will lie for weeks in the grafs, and wreak his
vengeance upon the offending party without
any declaration at all. A Chriftian treats his
prifoner with courtefy, and difmiffes him now
without ranfom; (k) A Turk condemns him
to miferable Slavery. Vaft Empires as we
have ſeen are in the practice of facrificing
their Captives, in a manner the moſt horrid,
out of duty to their Gods: Other Savages
will pour molten lead down their throats, or
confine them for years in dungeons in the
common mode of puniſhment; Others again,
will tie them to ſtakes, and eat their mangled
and half roafted fleſh before their faces, out of
a principle of honour. One tribe of men, will
poiſon their weapons; Another, will make uſe
of none that do unneceffary mifchief: Among
one fet of people, a Pirate is almoſt a term of
honour: Among another, he is hanged as a
Thief. With one Sovereign, an Ambaſſador
is the moſt facred of characters: With another,
he is confidered as a mere hoſtage for the
good behaviour of his nation.
(k) For the account of Ranfom, as it formerly ftood, fee
Chap. 9.
This
NOT THE LAW OF THE WORLD. 135
This diverſity of cuſtom is endleſs; yet all
the nations thus differing in their mode of in-
tercourſe, imagine they are purſuing a con-
duct warranted by Laws which are common
and well known, and the contrariety is
moſt marked between countries that are moſt
diftant, and moft feparated by religious
opinions,
The GOD of WAR, was almoft the only
GOD, worshipped by our Scythian anceſtors;
and the ftate of their part of the world, was
accordingly a ſtate of perpetual war. To mix
and to die in the battle, in order to drink
from the fkulls of Enemies in the Hall of
ODIN, was a part of their religion, and deareſt
ambition; and he was difgraced who had not
well earned theſe honours. A people however
of this ftamp, could never be brought to liſten
to doctrines, or to attend to laws which called
for the obfervance of peace and order, fuch as
the Chriftians held out, and comparatively
practifed. (1)
(1) See Chap. 7. on the Scandinavian Law of Nations.
K 4
When
136 THAT THE LAW OF NATIONS, IS
When the New World was opened to the
ſpirit and adventure of the Old, it was reaſon-
able to expect what was found; new laws
and cuſtoms, as well as a new people and
language. But on that very account it was
not reaſonable to expect, that the intercourſe
between the Spaniards and the Mexicans
ſhould be governed by the fame cuſtoms as
the intercourſe of Nations in Europe: nor, if
the latter facrificed their prifoners to their
Gods, could the former fairly complain of it
as a breach of the Law of Nations. Yet to
the aſtoniſhment and horror of every thinking
and good mind, this was one of the charges
on which the innocent and unfortunate mo-
narch of PERU, was put to death by the ruth-
lefs PIZZARO. (m)
Examples might be drawn out to a length,
even fatiguing, to fhew how oppofite the ge-
neral notions of States have been at various
times and places, and how little it can be ex-
pected to find a fimilarity of ſentiment or
of conduct, except among particular nations
(m) Robertſon's Amer, 3. 46. Atuhalpa was even tried
by a Spaniſh Court of Justice.
only.
NOT THE LAW OF THE WORLD.
137
only, few in comparifon with the reſt of the
world.
Such nations indeed we may reaſonably
ſuppoſe to be governed by the fame law,
which is rendered the more neceffary, as their
intercourſe is more frequent; they will na-
turally at leaſt, pay higher reſpect to cuſtoms
which are known and received, and which
accommodate themſelves to their own pre-
judices; than to others, of which they know
nothing, which they do not underſtand, or
which may even be repugnant to their deareſt
and moft favourite principles.
According therefore to our former obferva-
tion, we find that the world is for the moſt
part carved out, as it were, into different Sets
of Nations, all of them underſtanding one
another; and the alliance is the more ftrict,
according as they are bound by the fame
political ſyſtem, the fame interefts, the fame
religious prejudices, or the fame geographical
pofition.
The latter is of great importance. The
whole ſpirit and genius of a People may
take
5
their
138 THAT THE LAW OF NATIONS, IS
their rife from their fituation on the Globe
and they are Shepherds, Hufbandmen or
Merchants, according as they find themſelves
placed in Mountains, in Plains, or on the
Coafts of the Sea. Each Claſs of People may
be faid to have a different Law of Nations ;
and with the latter this remarkable circum-
ftance almoſt invariably attends them; that
that which feems the moft tranfient, the moſt
evafive and the moſt common of all the
works of nature, becomes a fixed and per-
manent property, through the avarice of man.
Wherever a ſpirit of commerce has prevailed,
the Sea has become as much an object of con-
tention as the Land. The poffeffion of cer-
tain Fiſheries, and the right to a particular
Navigation, have every where been points of
the utmoſt importance in the Politics of the
Nations intereſted, and given birth to certain
regulations and laws, wholly indifferent, if not
wholly unknown to Nations of an oppofite
character.
The account and hiftory of all theſe various
laws in different parts of the world, and at
different æras of improvement, would be a
work of no mean confequence to a mind of
enlarged
1
NOT THE LAW OF THE WORLD. 139
1
enlarged enquiry; (2) it is not however
the object of the prefent differtation to at-
tempt it.
Thus then, diftinct Claffes of Nations have
diſtinguiſhing Sets of cuſtoms.
The North American INDIANS have one;
The INDIANS of the South Sea another; The
NEGROES a third; the GENTOOS a fourth ;
The TARTAR Nations a fifth; The MAHO-
METANS a fixth; The CHRISTIANS a fe-
venth, and fo on.
With the two laſt, their Religion had in
other times an evident, and if I may fo fay, a
formal effect, upon their Law of Nations. The
follower of MAHOMET was commanded by
the volume of his duty (0) to wage war on
Chriſtianity, and to flaughter its profeffors;
(2) A flight enumeration of fome few of them has been
made by Dr. Falconer, in his Remarks on the Influence of
Climate. B. 6. Chap. 3. Some of them alfo are to be found
fcattered up and down the bulky work of Anderſon on
Commerce.
(0) Alcoran, Chap. 8. 40.
1
and
140 THAT THE LAW OF NATIONS, IS
1
and his very mode of making profelytes was
by the fword. (p)
On the other hand we find nothing fo
common in the public affairs of Europe, (more
particularly in former times, when its danger
was more to be dreaded,) than to take arms
for the defence of Chriſtianity againſt the
Turks; and the Family of Auftria, whoſe
power and zeal in that fervice were greater
than others, derived at one time, much profit
from an attention to theſe prejudices. (q) Of
the fame nature with this, were the motives
for thoſe defolating wars known by the name
of the CRUSADES ; in which the extirpation
of Infidels, and the recovery of a Country
(p) See Mod. Un. Hift. 1. 248. Octav. In more antient
days alſo, the profeſſion of Chriſtianity was the caufe of en-
mity from the Perfians to the Romans. "I will never give
(C
peace to the Emperor of Rome," (Heraclius) faiď
Chofroes,"till he has abjured his crucified God, and em-
"braced the worſhip of the Sun."-Gibbon's Dec. and
Fall, Cha. 46.
(9) A compliance alfo with theſe prejudices, formerly
produced an opinion in England, that it was againſt the
Common Law to make a Treaty with Infidels. 4 Inft. 155.
See the Chapter on the Influence of Treaties and Con-
ventions.
1
fairly
NOT THE LAW OF THE WORLD. 14L.
fairly poffeffed according to the maxims of
the world; (r) were held out as legitimate.
and equitable cauſes for war, merely from the
facredness of the prejudices in its favour. It
is needleſs to point out how little this could
be admitted by nations who never had heard
the name, much leſs of the hiftory, and who
could not poffibly underſtand the nature of
the Divinity of Chriſt. (s)
The community of worship however is
confidered by Grotius as fo great a bond of
political union among the Chriftians, that in
that part of his work which treats of Alli-
(r) The Holy Land had been in peaceable poffeffion of
the Infidels for five hundred years when the Cruſades broke
out.-Maimbourg. Hift. des Croiſ. L. 1. An. 1093.
(s) To uphold the Glory of the Almighty, to recover
the Kingdom of Chrift, and to promote the good of the
true Believers, were the profeffed caufes of thofe celebrated
wars, in which the Weft and the Eaft were in arms againſt
one another, with very little interruption, for a ſpace of
four hundred years; Maimbourg himfelf, even fo far down
as the laſt century, feems to think that they were acceptable
to God.
"Ou plutot," (fays he, fpeaking of Peter the
Hermit)" que Dieu, qui avoit choifi cet inftrument pour
faire eclater fa puiffance et fa gloire, &c.
66
Hift, des Croif. L. 1. An. 1093.
ances,
142 THAT THE LAW OF NATIONS, IS
1
ances, he holds that no Chriftian State can be
excuſed from affifting another, when attacked
by Infidels. (t)
This profeffion of the fame Religion, marked
out the European Nations as diftinct from the
reft, in various other ways. To preferve the
peace of Chriſtendom, and ſpare the effufion
of Chriftian Blood, was always, and is at this
day, a favourite and popular reaſon given by
one State, for its interference in the affairs of
another.
The Pope indeed, as the common Father of
Christendom, was the directing member, or
more properly, as we fhall fee, (u) the Defpot
of a very ftrict Alliance between States, in
other refpects, as independent of one another,
as the moſt diftant and unconnected Nations.
Accordingly, no feature in the hiſtory of
(t) De. J. B. et P. 2. 15. 12. He poffibly however means
only in thoſe caſes where the exiſtence of the common re-
ligion is abfolutely threatened; as long before his time, the
Turks were received into the political connections of
Europe. Vide infr. Chap. XV.
(u) Vide infr. Chap. XIII.
Europe
NOT THE LAW OF THE WORLD.
143
Europe is more ftriking than that vaft and
frequent affemblage of all the Sovereigns of
Chriſtianity, or their Reprefentatives, in what
were called the Ecumenical Councils. In
theſe, many things were fettled exclufive of
mere points of faith; more particularly, the
precedency of Nations, the rank and power
of Sovereigns, and not unfrequently their
right to their Thrones themſelves; points
which it is palpably the province of the Law
of Nations alone to determine. (x) Rank
and precedency were even made to depend,
amongſt other things, upon the priority of
converſion to the Chriftian Religion; (y) an
expreſs divifion was made of thoſe who pro-
feffed it, into four quarters; (x) and the very
(x) Frederick II. one of the moſt active Emperors of
the Houſe of Suabia, was depofed at the Council of Lyons,
held expreſsly for that purpoſe by Pope Innocent IV.—
Mat. Paris. 672. But fee this fubject amply diſcuſſed,
Chap. XV.
(y) Mackenzie's Law of N. as it concerns Precedency,
Page 6.-Howel on Preced. 9, 10, 11.-See alfo Cotton's
brief Abſtract of the queft. of Preced. between England
and Spain, preferved in the Harleian Manufcripts.
(z) Italy, Gaul, Germany and Britain. (M. S. Cotton's
Preced. of Eng, and Spain.)
Bame
1
144 THAT THE LAW OF NATIONS, IS
name of Ecumenical Council, according to
Father PAUL, was derived, after the divifion
of the Weſtern from the Eaftern Em-
pire, from the unity and communion of
thofe States and Countries which obeyed the
POPE. (a)
Even the divifion of the fame Religion into
different fects, may fometimes produce a
partial alteration in the Law of Nations, ac-
cording to their tolerance or their bigotry.
The ſuperſtition of the Roman Catholics, par-
ticularly in former times, had an evident
effect upon fome of their laws with reſpect
to the privileges of Stranger Nations, who
thought differently from themſelves; and
while the Reformation was in its infancy, at-
tempts were not unfrequently made to cut off
a right univerfally held to depend upon the
Law of Nations, namely, that of Ambaſſa-
dors to the free exercife of their own re-
ligion. (b)
It is more evident in the manner in which
various Colonies have been fettled, according
(a) Fr. Paul, in Pref. Con. d. Trent.
(b) Wicquef. de L'Ambaſſ.
as
NOT THE LAW OF THE WORLD. 145
as the religious notions of the Settlers were
liberal or confined. PENNSYLVANIA was pur-
chaſed by fair treaty from the Indians, by the
equitable and tolerant QUAKERS; the Indians
of South America were reduced to Slavery by
the SPANIARDS, upon the pretence of con-
verting them more eafily to Chriſtianity.
The fame diverſity of Spirit appears in a
variety of other inftances; and whenever a
conduct is adopted in the courfe of War or
Peace, contrary to the approved cuſtoms of
Europe, though confonant with the practice
of other parts of the world, it is a fair
ground for complaint. Thus when the Duke
of Guiſe, had put fome Spaniſh ſoldiers, whom
he had taken prifoners, into chains; it was
made the fubject of loud complaint by the
Spaniſh Ambaſſadors at the Congreſs at Ver-
vins, as contrary to the Laws of War, and the
humanity which ought to be obferved among
Chriftians; who never, faid they, treat their
prifoners as if they were Turks. (c) By the
Turkish Law of Nations, therefore, this treat-
(c) Lettre du 26 Fev. au Roi. 1598. Mem. de Bell. et
Sill.
VOL. I.
L
ment
146 THAT THE LAW OF NATIONS, IS
1
ment was not illegal; a clear proof that there
were more laws than one. It is no doubt in
conformity with this fpirit alſo, that with
fome Nations we are forced to make exprefs
Treaties to deliver ourſelves from piracy and
flavery; while among our own, (that is, in
EUROPE) the law obſerved by it, is fufficient
protection without them.
Again, it is an opinion generally inculcated,
and deſervedly fo, that from the relationſhip
of all the World, we ought to be hoſpitable
and kind to Strangers, whether they come
from the Eaft or from the Weft; whether
they adore MAHOMET, or CHRIST; and this
forms a very fair part of the European Law
of Nations. The Turks however are taught
by their religion fo to hate and defpife the
Chriftians, that the epithet "Chriftian Dog,"
is every where beftowed upon them.
even forbidden them in many parts to make
uſe of ſo noble an animal as the Horſe, and
they are forced, as a mark of fubmiffion, to
content themfelves with the humbler Afs,
whenever they appear in public. (d)
them. It is
(d) For this, and many other indignities, fee Gibbon.
Dec. and Fall, Chap. 51.
It
NOT THE LAW OF THE WORLD.
147
It is generally inculcated, that Strangers
ſhould be equally protected in their property
with Natives; and any public violation of
this rule, authorifed by an European govern-
ment, would raiſe an univerfal outcry againft
it among the furrounding States. A very few.
miles by land or fea, bring us to countries
whofe exiftence almoft depends upon the pil-
lage of Travellers; and were you to preach the
obfervance of your own cuftoms to a Tartar,
or an Arab, he would not underſtand you.
There is another very ftrong fhade of
difference between EUROPE and other parts
of the globe, which powerfully confirms the
Suppofition we have ſtarted; and that is, the
remarkable opinion entertained by all Euro-
pean States reſpecting that famous part of the
Droit Public, known by the Name of the
BALANCE of POWER. Of this, according
to the preſent fyftem, the people of Antiquity
knew little or nothing; and it was unknown
ever to modern Nations themfelves before
the time of CHARLES the Fifth. There is
indeed a kind of natural policy, which felf-
preſervation will fuggeft to all States, of unit-
ing againſt one common powerful enemy,
L 2
whoſe
148 THAT THE LAW OF NATIONS, IS
}
whoſe hoſtility is open and flagrant; and this
is to be met with throughout the World:
But no SET of NATIONS, that I have yet
heard of, except the moderns of Europe,
have laid down a Syftem to prevent long before
hand, even the juft Augmentation of any par-
ticular Power, which in the end might prove
detrimental to the reft; nor were any SET of
NATIONS before thefe, fo connected together
by TREATIES, ALLIANCES, GUARANTIES,
and various other ties, that the prefent ftate
of things can hardly be altered without the
common conſent. The fear of fuch an ac-
ceffion of power as may prove fatal to the
independence of Europe, is now held to be a
fair Caufe for War; and Nations without ſenſe
of immediate injury, or wiſh to avoid immediate
danger; confequently, without perfonal hate
or paffion, now join chearfully in the moft
dreadful conflicts to which the lot of Huma-
nity is liable; a circumftance which may be
confidered as one at leaſt of the cauſes of that
poliſh and mildnefs which regulate the more
humane mode of modern warfare.
An attention to this great variety in the
common governing principles of action, which
certain
NOT THE LAW OF THE WORLD.
149
certain Communities entertain, to the ex-
clufion of others; has drawn from the Writers
on the Subject, ſtrong hints of the ſoundneſs
of the opinion we have adopted. I call them
hints, becauſe no treatiſe that I remember to
have ſeen, has yet ſet it down as a broad un-
controverted propofition. But though no
poſitive affertions are to be met with to this
purpoſe, yet from a combination of the general
views of the matter that appear to have been
taken; the ſenſe of various authorities is al-
moft as clear to the point, as if it had been
exprefsly afferted.
M. De Callieres, in his book called "La
maniere de negocier avec les Souverains," con-
fines this Negotiation to the Sovereigns of
Europe. "In order the better to underſtand,"
fays he," the utility of Negotiation, we muſt
"confider all the States of Europe as having
fuch intimate connection together, that they
feem to be the members of one and the fame
Republic. (e) To this purpoſe alſo are the
fentiments of other writers, as we fhall here-
after have occafion to demonftrate.
CC
(6
ર
(e) De la man. de neg. Chap. 3. but vide infr. the
fubject purſued hiſtorically, particularly Chap. xiii.
1
L 3
In
150 THAT THE LAW OF NATIONS, IS
In the treatiſe de Foro Legatorum, by Van
Bynkershoek, there is a very ftrong implied
opinion in favour of our fyftem. A queſtion
is made in the nineteenth Chapter, how far
any one Nation has the right to take from
Ambaſſadors, the privileges accorded to them
by the Law of Nations. The author is clear
that it has that power, provided it declares
its intention before hand; for, fays he, the
enjoyment of all their privileges depends upon
confent. One Nation can impofe no obligation
on another, nor can the confent of all the
Nations in the World together, force any one
free State, ſingle as it may be, to follow their
cuſtoms, if it chufes to adopt others.--This
opinion is founded upon that of GROTIUS,
which holds that though it is contrary to the
received Law, to try an Ambaffador in the
Courts of the country he refides in; yet be-
fore he is received in the country, it may be
Stipulated that he ſhall ſo ſubmit to them. (f)
VATTEL, alfo, adopts it in all its extent,
when he comes to that part of his fubject. (g)
But
(f) Grot. D. J. B. et F. 2. 18. 5.
(g) "Voyons donc quelle obligation la coutume, l'ufage
"reçu, peut impofer aux Nations, non feulment en ce qui
« regarde
1
NOT THE LAW OF THE WORLD. 151
But if theſe Authorities are allowed, it is
clear that the Law may be totally altered,
according to the Will of particular Nations;
and if fo, it can never be fuppofed, from the
mere force of the term, that it is binding upon
all the World.
If Authority however were ftill wanting,
GROTIUS and SUAREZ, are fo full to the
point as almoft to decide it. "The Law of
"Nations," fays the firft, "receives its force
"from the confent of all Nations, or at leaſt
"of many of them. I fay many, becauſe
"there is ſcarce any Law, but that of Nature,
"regarde les miniftres, mais auffi en general fur tout autre
"fujet. Tous les ufages, toutes les coutumes des autres
"Nations, ne peuvent obliger un Etat indépendant, finon
"en tout qu'il-y, a donné fon confentement exprés ou
"tacite. Si quelq'une y decouvre dans la Suite, des in-
« conveniens, elle eft libre de declarer qu'elle ne veut plus
"s'y foumettre, et fa declaration une fois donnée bien
«clairement, perfonne n'eft en droit de fe plaindre, fi elle
"n'a aucun egard à la Coutume."
Droit des Gens. L. 4. Ch. 7.
So alfo Bynkerfhoek, "Gens Gentem non obligat, nee
"vel omnes Gentes obligant aliam, licet folam, quæ fui juris
eft, et aliis legibus uti decrevit."
De For. Legat. C. xix.
L 4
1
"which
152 THAT THE LAW OF NATIONS, IS
1
66
"which is common to all the World. Nay,
"there may even be found in one part of the
"Earth, a Law of Nations, which is not known
"in another part of the Earth; as we ſhall
"demonftrate in its place, when we come to
fpeak of Captivity and Poftliminium." (b)
Of the fame opinion is SUAREZ, who affirms
in different parts of his work, that the law in
queſtion may be changed as far as it depends
upon the confent of men; that it
that it may be
changed by any particular Kingdom or Re-
public; and even, according to fome, by
private authority. (i)
c
sc
(b) "Jus Gentium, id eft, quod Gentium omnium aut
« multarum voluntate vim obligandi accepit. Multarum
❝ addidi, quia vix ullum Jus reperitur extra Jus naturale,
quod ipfum quoque Gentium dici folet, omnibus gentibus
"cominune. Imo fæpe in una parte orbis terrarum est Jus
"Gentium quod alibi non eft, ut de Captivitati et Poſtli-
"minio fuo loco dicemus." De J. B. et P. 1. I. 14. I.
(i) Quarto ex dictis colligitur Jus Gentium effe mu-
tabile quatenus ex hominum confenfu pendet; in quo etiam
differt ex Jure naturali. Imo dicunt aliqui poffe mutari a
privata auctoritate. Ratio eft quia res prohibitæ Jure
Gentium fimpliciter, non funt malæ de fe, et intrinfece.-
Suarez. De Leg, ac Deo Legis. L. 2. C. 20. S. 6.
Nam prius Jus, poteft immutari a particulari regno veľ
republica, quantum ad ipfum, &c. Id. L. 2. C. 20. S. 7.
It
NOT THE LAW OF THE WORLD. 153
It is very true that Burlemaqui contends,
that variations, when they are cruel, are mere
barbarous cuſtoms, from which all juſt and
well-regulated Nations ought to abftain. (k)
But furely, when the very queftion is con-
cerning the univerfality of a cuftom, and other
cuſtoms are proved to exift; to get rid of
them in this way, is a mere petitio principii ;
not to mention that the Nations thus adopt-
ing other Laws, have an equal right with
any other, to call themſelves (according to
their own ideas at leaſt,) juft and well-regu-
lated. (7)
Among the antient German People, the
death of a man was not confidered of that
(4) Du Dr. Nat. 2. 6. 8,
(1) We have unfortunately, in the prefent times, ex-
perienced too ftrong a proof of this. The miſerable de-
parture of the French from that humanity which has con-
ſtituted the diſtinguiſhing honour of modern warfare, how-
ever execrated by all good men, is confidered by themſelves
as an elevation of their character.
I have already, in the preface, diſclaimed all perfonality
or paffion, in any thing I may be forced to remark con-
cerning the French, The prefent example is evidently
the beſt proof that could be cited in the fimple courſe of the
argument; and wholly, therefore, independent of all per-
fonal feelings as an Engliſhman.
5
high
154
THAT THE LAW OF NATIONS, IS
high conſequence, which the purer doctrines
of Chriſtianity, and the more regular policy
of modern States give to it at prefent; hence
every murder, however atrocious, had the
penalty of a fine in money fet upon it, as
the only puniſhment. When the jurif-
prudential Writers, however, come to conſider
the Nature of the power of puniſhment; they
all lay it down, that crimes againſt the Law
of Nations, are punishable by all Nations;
whether thoſe who have received the injury
or not and among thofe crimes are exprefsly
included Murder, and even Adultery. (m)—
The doctrine is juſt with reſpect to thoſe
Nations that obey the Law; but it would be
furely too much for any one to affume the
power of inflicting death (the puniſhment
commanded by it) upon a murderer of that
Nation, which, like our Saxon Ancestors, com-
pounded the injury for a fum of money.-
Still lefs could it be expected that a man,
whoſe very religion perhaps admitted of a
(m) 4 Inſtitute 153. Coke there goes fo far, as to call
even Felony, a crime againſt the Law of Nations.-It
would be needleſs to fhew the injuſtice of puniſhing a
Foreigner (though of Europe) for a crime, of which he
might know nothing.
2
community
NOT THE LAW OF THE WORLD. 155
community of Wives, fhould know he was
committing a crime, in merely conforming to
his cuſtoms, becauſe other Nations chufe, how-
ever reaſonably, to confider it as a breach of
their Law.
We have already obferved, (2) that fome
authors have called inceftuous marriages, in
the afcending line, a breach of natural right;
and they hold alfo, that, according to natural
right, any man who has offended againſt
Nature, may be puniſhed by him who has
not. (0) Now the Perfians and Affyrians, as
has been mentioned, in many caſes, not only
permitted, but held the offspring of fuch
marriages in honour. (p) It would be abfurd
to fay, that according to the Law of all the
States of the World; any one of them could
juftly puniſh the Perfians and Affyrians for
theſe acts, however abominable!
(n) Chap. II.
(0) Grot, D. J. B. et P. 2. 20. 3.
(p) "Si les Affyriens, fi les Perfes, ont epoufé leurs
❝meres, les premiers l'ont fait par un refpect religieux
"pour Semiramis; et la feconde par ce que la Religion de
❝ Zoroastre donnoit la preférence à ces Marriages."-
Montefq. De L'Efp. D. Loix. L. 26. Ch.
14.
¿
From
156 THAT THE LAW OF NATIONS, IS
From all that has been faid, a very eafy
expofition is to be deduced of a remarkable
phraſe of the Prefident MONTESQUIEU; re-
markable however only in the caſe, that his
opinion on this fubject is different from
ours.
When he ſpeaks of any Nation, or Set of
Nations, as the Tartars, and others, he fays,
their Law of Nations is fo and fo; a clear
proof that he thinks there are different laws.
of Nations exifting in the World. Thus,
fays he, the law of Nations of a people who
are yet in the Shepherd ftate, has for its
fubject, what among more civilized people is
the ſubject of municipal inftitution. (g) The
Law of Nations obferved by the Tartars, is to
deftroy wherever they appear! (r)
The anonymous Commentator of Montef
quieu, does not comprehend, how that can
be the Law of Nations, which profeffedly is
deftructive of all Law. But the anſwer is
plain; it means, that thofe people who are
(9) Efp. des Loix. L. 18. Ch. 12.
{r) Id, Ch, 20.
in
NOT THE LAW OF THE WORLD. 157
in this terrible intercourfe with one another,
expect, and know that it will be thus terrible;
and this very knowledge and expectation, make
it Law. In the fame manner as the Law of
Turkey, which vefts every thing in the will
of the Prince, and which therefore appears
to us to annihilate all Law; is, in fact, to its
Inhabitants, the Law of that Country.
We ſee then the effect of RELIGION,
MORALS, and GOVERNMENT, not only upon
the genius and laws of particular people, but
upon whole Diſtricts of the Earth; and where
there are fuch oppofing principles acting upon
the minds and conduct of different CLASSES
of Nations, it is in vain that you expect them
all to conform to the fame law in their public
intercourfe; equally perhaps in vain as if
you expected the fpirit of every Government,
and of every code of municipal law, to be the
fame throughout thoſe States which, according
to us, obey the fame law of Nations. When
therefore we make ufe of the common ex-
preffions, "the Law of Nations," or "the
"whole World," they are feldom to be taken
in the extenſive fenfe which is implied by
thofe terms; but always with fuch modifica-
tions
158 THAT THE LAW OF NATIONS, &c.
tions as the ſubject we may happen to be
upon, will point out to us. Thus, in relating
the tranſactions of Indian or African Empires,
fuch expreffions would merely mean the law
of Indian or African Nations; and the Indian,
or African World; and fo alfo, in our own
daily tranſactions in Europe, we mean by
them nothing more, than the law of the
European Nations, or the European World.
}
A
CHAP.
HOW DIFFERENT CLASSES OF, &c. 159,
CHAP V.
HOW DIFFERENT CLASSES OF NATIONS MAY BE
DISTINGUISHED,
I AM here aware of a very natural queftion
which has the faireft right to be anſwered
before we advance farther.
If theſe principles are true, and the world is
really fo divided, as it is faid to be; the divifion
no doubt ought to be marked and clear ;-
and as every Nation affumes the right of
deciding upon the law, it fhould be known
beforehand, what CODES particular States
obey, in order to prevent an unjuft inter-
ference. We may therefore, it fhould feem,
be fairly called upon to fhew the exact dif-
tinguiſhing line, by which Nations may be
ſaid to belong to this, or to that Claſs.
It muſt be confeffed that the anſwer to
this, is not without its difficulty; for as
there is no common Sovereign Legiſlator; no
general appellant Jurifdiction; it is ſcarcely
poffible
160 HOW DIFFERENT CLASSES OF
}
poffible to point out with exactneſs, (or in-
deed
any thing approaching to it,) what are
the particular States that are held bound to
obey any particular Code. From what has
gone before however, much may be collected,
which, though it may not amount to abfo-
lute certainty, will at leaſt prove to us a
pretty fure guide in the enquiry.
For example; whenever we obſerve many
different Communities, in the habit of mak-
ing Treaties and Alliances together; of hold-
ing Congreffes, and entertaining ordinary or
refident Embafies at one anothers Courts; of
appealing to each others Mediation; (a) of
deciding their differences by one known fettled
rule; (let it be good or bad;) or of carrying
on War in the fame mode, (be it cruel or
lenient ;) above all, when we ſee them
governed by the fame cuftoms, arifing from
climate or geographical fituation, and bound
together by one common Religion; then, may
we fairly ſuppoſe that they agree, tacitly or
(a) See Mably on the mode in which it is likely that
the Turkish Empire will in time affimilate itfelf with the
European States.-Droit. Pub. ch. 5. For the progreſs of
thefe parts of the law in Europe, vide infr. chs. x. xiii.
expreſsly,
NATIONS MAY BE DISTINGUISHED. 161
exprefsly, to obey the fame law of Na-
tions.
One thing is decifive; and that is, when
we obferve them fearching for the rule of
their duty in the fame Codes of Jurifprudence,
and agreeing to pay refpect to the opinions.
of the fame Writers; in which cafe, it is
equal to abfolute demonſtration, that they all
come under the government of the fame
Law. (b)
We muſt all recol-
American Govern-
Being told that his
(b) Hence when we fee a Nation, or its Minifter, re-
fuſe to acknowledge authorities generally received by other
States; it is a clear fign, that it means no longer to obey
the old Law of Nations: in other words that it means to
withdraw itſelf from its Set or Clafs.
lect the correſpondence between the
ment and the French Envoy, Genet.
proceedings were contrary to the fpirit of the doctrines of
Grotius and Vattel, he replied, that he knew nothing
about Grotius or Vattel, but that his conduct was con-
formable to the doctrines of the French Conftitution. This
was either ignorance, or defign; if the one, it can form
no cafe; but if the other, it was almoft a direct notice
that the French meant to retire from the obedience they
had paid to the Code of the European Law.-In the latter
cafe, therefore, Genet was not a Fool, as he has been.
called, but merely confiftent.
VOL. I.
M
With
162 HOW DIFFERENT CLASSES OF
4
With us in Europe, and the Nations and
Colonies that fpring from us, this has long
been the practice. Things for the moſt part
are fettled and understood: the fame Laws of
War and Peace, of Treaties, and Alliances, are
obeyed; the fame Maxims are enforced; the
fame Authorities are cited; the fame Religion
unites us. It is not fo with other Nations; and
the propofition is thus demonftrated, that when
we speak of the Law of Nations, we mean
only the Nations of our own SET, that is, of
EUROPE.
But though a particular number of States
may be avowedly within the pale of the fame
Law; it certainly can hardly fail to happen
that there may be others barely upon the verge
of it; and the complexion of their character,
is therefore dark and doubtful. Thefe, may
partake of two laws at the fame time; or they
may abfolutely be under the control of one,
with the reſt of the Nations of their own Class;
while they partially adopt the other, as far
as it regards their partial intercourſe with the
Nations of another Clafs, (c) Such States as
(c) Per imitationem mutuam populorum fine fpeciali
confenfu uno tempore facto.-Suarez. Corollary 1. cap.
20. 1. 1. De leg. ac Deo, &c.
thefe,
}
NATIONS MAY BE DISTINGUISHED. 163
theſe, are for the moſt part bordering upon
one another; or if at a diftance, connected
in fome meaſure by Trade and Navigation ;
and fuch States may be deemed to be in a
kind of Twilight between the two Laws.
In this fituation, the TURKISH EMPIRE
feems to have been for fome time; governed
no doubt in its intercourfe with the Nations
of the Eaft and South, by the ferocious
maxims of thoſe countries; but turning, with
a manner fomewhat foftened, to a connection
with the States of the Weſtern World. (d)
In this ſituation alſo formerly, the Ruffian
and Polish Nations continued, before they
came to adopt our manners and maxims in
all their extent; and as it was comparatively
late before this happened, they have fome-
times been called the mere Primi Barbarorum.
The Ruffians took their place in the Euro-
pean Republic through the medium of the
(d) See a good hiſtorical ſketch of the connection be-
tween the Porte and the European States by Treaty, in
Mably Droit. Public. ch. 5.
M 2
Greek
164
HOW DIFFERENT CLASSES OF
•
Greek Empire, having embraced Chriſtianity
in 989, when their prince Walodomir
eſpouſed Anne the Sifter of the Emperor
Bafilius Porphyrogenitus. (e) And it is
not impoffible that their backward ftate
of civilization and
and fraternity with the
European States, might be owing to this,
among other cauſes; the Greek Empire,
though much connected from fituation, being
different in manner, character, and race, from
the German Nations. (ƒ)
The Pruffians were even behind them in
rank; and their entry into the Clafs which
obey the European Law, was probably
marked by their converfion to the Chriftian
Religion.
So late as the thirteenth century, they are
deſcribed to have been buried in the moſt
(e) Gibbon. Decl. & Fall. ch. 55. Puffend. Introd. a
l'hift. Un. 1. 5. ch. 2.
(f) It was the opinion of Montefquieu that Religion
degenerated in Ruffia under the Greek Emperors, to the
low ſtate in which it continued, till Peter the Great
renovated the whole nation in Religious, as well as other
matters. (Grand, et Decad. Rom. ch. 22.)
pro-
1
NATIONS MAY BE DISTINGUISHED. 165
profound depth of ignorance and idolatry.
They at firft lived promifcuouſly according to
tradition, in woods, having neither manners,
nor order, till an old man, named WAYDE-
WUT taught them by the example of the
Bees the neceffity for a King. He himſelf
was the firſt Sovereign, and in extreme old
age, offered himſelf a voluntary facrifice to the
Gods of the Country. The Knights Templars
made holy war upon them, and even in the
thirteenth century, fuch was their favageneſs,
that they facrificed thoſe that fell into their
hands, to their Idols.
By that time however the feeds of Chrif
tianity were fown among them; and between
the zeal of Miſſionaries, and the fwords of
the Knights, they quitted their ignorance and
entered into the rank of the nations of
Europe. (g)
1
How, or when it is, that a people in this
fituation may be faid with accuracy to quit
(g) Puffend. Introd. à l'hift. un. 1. 5. ch. 1.
M 3
their
166 HOW DIFFERENT CLASSES. OF
L
their own SET, in order to enter into ano-
ther; and by what modes and gradations it
does fo, is very difficult to be determined.
In general however we may obſerve, that
the ſteps have been very gradual, and the
manner by TREATY.
Thus, the connection between Europe and
the Mahometan States, feems univerfally to
have commenced by Negotiation, and Alli-
ance. In former times, their mutual re-
lations were folely thofe of Enemies.-They
exhaufted themfelves in war; they made
peace, not to acquire friends in one another,
but merely to recruit their loffes; and that
which firft recovered, was the first to recom-
mence hoftilities. (b) But the weight and
impreffion of the character of CHARLES V.
as they were the cauſe that the Syftem of
Europe was firſt reduced to fomething like
regular principles; fo they extended them-
felves beyond the bounds of European Poli-
tics, and were the means of introducing the
Turkiſh power into the Chriftian Confederacy.
(b) We fhall confider this fubject more at large when
we come to the influence of Treaties upon the European
Law of Nations.
2
It
NATIONS MAY BE DISTINGUISHED. 167
It was the more effectually to balance his
fuperiority of confequence, that FRANCIS I.
was driven to encounter the religious hatred
of many of his fellow Chriftians, when he
fubmitted (though not the firſt as has fome-
times been fuppofed) to enter into alliance
with the Infidels of Conftantinople.
Long
after his time however, the PORTE was fo
ignorant of the affairs of Europe, that till
they became acquainted with the power and
energy of ELIZABETH's character, they be-
lieved England to be a province of France; (i)
and even then, accorded privileges to the
Dutch, on the fuppofition that the Belgic
State was a dependency of England. (k) For
a century and an half afterwards, they were
but little known except to their old enemies
the Venetians and Auftrians, and were vifited
by more diſtant people, as the Chineſe or Per-
fians are vifited, for the fake of commerce.
It may be fuppofed therefore that little
change was made in their maxims of State,
or their law of Nations; and accordingly, the
(i) Birch. Mem. of Eliz. 1. 36.
(4) Mably. Droit. pub. ch. 5.
M 4
moft
168
HOW DIFFERENT CLASSES OF
moſt flagrant breaches of the Law, will
generally be found to have happened in our
intercourſe with them.
}
The growth however of the power of
Ruſſia in the preſent century, and the confe-
quent neceffity of fupporting the Ottoman
Intereft, will probably be the means of their
affimilating more cloſely with ourſelves, than
ever; as far at leaft as their religious preju-
dices will permit.
By Treaty alfo, the Barbary States have at
length been induced to affume a character a
little, and but a little, more conformable to
European maxims. Stipulations are inſerted
in various articles of Treaties that have been
made with them, that public Miniſters ſhall
enjoy the protection of the Laws of Nations;
and what thofe Laws are, we are forced
actually to explain to them.
We have been the more particular and
elaborate, poffibly fo as to have become pro-
lix, upon this important part of the ſubject;
becauſe
I
NATIONS MAY BE DISTINGUISHED. 169
becauſe though the arguments for our Syf-
tem are fufficiently obvious to any one who
attends ſeriouſly to them; yet they have not
only never till now been collected into one
broad point of view, but are actually not
often to be collected, except by implica-
tion.
No one has yet laid it down in a clear,
ample and precife manner that the Laws
which are the objects of our enquiry are not
the Laws of the World; of courfe no one
has yet examined, how far they obtain with
particular Nations; or how far attention.
ought to be paid to the circumftance of their
obeying another Code.
And here we fhall take our leave of the
general fubject, having demonftrated as far
as we are able, the neceffity in all ſpecula-
tions concerning the Law of NATIONS, for
confining what we fay to fome one par-
ticular CLASS of them, as they are united
together under fimilar principles of action,
and fimilar cafts of thought.
The
170 HOW DIFFERENT CLASSES OF, &c.
The chronological account of the law, as
we ourſelves have obeyed it in EUROPE; the
ftrange ideas that were formerly entertained
of it, generated by various local and impor-
tant circumſtances; the gradual changes, (and
the cauſes of them) which took place in thoſe
ideas; together with the laſt improvements
that were given to them, fo as to elevate the
Law into the rank of the ſciences, will be ex-
plained at large in the following chapters.
CHAP.
LAW OF NATIONS OF, &c. 171
CHAP. VI.
THE HISTORY OF THE LAW OF NATIONS IN EUROPE
AS OBSERVED BY THE GREEKS AND ROMANS.
I SHALL not detain the reader by enquir-
ing what Savages were the firſt who peopled
the forefts of EUROPE, or examining the
ftate of the intercourfe of wandering Bar-
barians, who had no political importance,
and little political communication. In the
carlieſt hiſtory of this remarkable quarter of
the Globe, two celebrated and interefting
CLASSES of people prefs forward upon our
obfervation, fo far fuperiour to all others,
that they divert us from the reft, and entirely
abſorb our attention. Theſe are the famous
nations of GREECE and ITALY, the laws of
whoſe intercourfe once known, we have lit-
tle occafion, as far as it concerns our fubject,
to enquire into thofe of cotemporary States.
They led and domineered in the politics of
the world; the mightieſt Nations bowed down
before them, and took their ideas and their
tone, from their will or example. They were
equally
172
LAW OF NATIONS OF
2
equally celebrated in arts, and in arms; they
penetrated the depths of Science; they ana-
lyfed the whole mind of Man; and all that
the unaffifted genius of Humanity could attain
to, they made their own in a manner as
rapid, as it was almoft miraculous.
One thing however was wanting to the
perfection which, had they poffeffed it, they
would probably have acquired: and that was,
the knowledge of the doctrines of a Religion,
which whatever may be its points of con-
troverfy, has had the uniform effect, where-
ever it has taken root, of producing a more
equitable notion of things, and a milder
fyftem of manners.
Accordingly, from the want of this great
advantage, we may obferve that the People
inqueftion, while they were in the firſt ſcale
of eminence in almoſt all other refpects, fall
far ſhort of their pofterity in their ideas of
the Law we treat of. The want of a prin-
ciple fufficiently binding in their fchemes of
Morality, had a palpable effect upon their
characters in private life; and, as might
be expected, it transferred itſelf into the
fpirit
THE GREEKS AND ROMANS. 173
1
fpirit of their Law of Nations. However there-
fore we may be accuftomed to hear of their
politeness, their arts, their refinements in
elegance, or their knowledge of Laws; we
find upon enquiry, that their politenefs, while
it ſharpened their underſtandings, had no
effect upon their hearts; that their refine-
ments were for the moft part fenfual; and
when we come to contemplate the general
ſcope of their Laws of War and Peace, they
will be found too often to reſemble the Bar-
barians they deſpiſed.
One of the moſt ſtriking Laws of the
Romans, is that by which, inſtead of con-
fidering every man as a fellow creature be-
tween whom and themſelves there was an
implied alliance; he was deemed a Being to
whom they were abfolutely indifferent, and
with whom there was hardly more connec-
tion than with the brutes of the earth: Info-
much that though, (to ufe the words of the
Law) when there was no treaty of friendſhip
with any particular Nation, it was not on
that account confidered as an Enemy; yet
if any thing mutually fell into the hands of
each other, it became lawful prize; ſo that
even
174
LAW OF NATIONS OF
even if a Citizen of either State came within
the territory of the other, he might lawfully
be reduced to Slavery, (a) and it was there-
fore one of thoſe caſes in which the right of
Poſtliminium had place. (b)
The whole genius of their character, and of
their very language, was of a fimilar caft, and
the word which fignified Stranger, was the
fame, both among the Greeks and Romans,
with that which in its original, denoted an
(a) Si cum gente aliqua, neque amicitiam, neque hoſpì-
cium, neque foedus amicitiæ caufa factum habemus; hi
hoftes quidem non funt; quod autem ex noſtro ad eos per-
venit, illorum fit: Et liber homo nofter ab eis captus, fervus
fit, et eorum. Idemque eft fi ab illis ad nos aliquid perve-
piat. Hoc quoque igitur cafu, Poftliminium ḍatum eft.
Dig. L. 49. Tit. 15. L. 3.
}
any
(b) The right of Poftliminium is that by which
Citizen of one State, taken in War by another, and releaſed
from captivity, re-enters the Threſhold of his Country and
fucceeds to the enjoyment of every thing which he would
have enjoyed, had he never been abfent. The genius of
this Roman Law therefore confiders all Mankind, whom
they had not made their Friends by Treaty, as a kind of
Enemies; who,. though they do not openly attack them, are
perpetually lying in wait for them at home.
Enemy.
-
THE GREEKS AND ROMANS.
175
Enemy. (c) Among the former people, every
one who did not ſpeak their language was
ftigmatized with the name of barbarian ;-
fapfaço, meaning literally, one who pro-
nounces a language with an improper accent.
This however would not be fo remarkable,
was it not for the curious rights which they
affumed to themfelves over theſe οι βάρβαροι,
who were fo unfortunate or fo inferior, as to
inhabit other Countries than their own. One
of the greateſt of their Philofophers, who
carried the reach of human intellect as high
as it well could go, afferted that Strangers
were Slaves by nature; might be confidered
as beafts of chace, and fairly hunted down;
and another in conformity with this, gives it
as the opinion of his Anceſtors, that of all
wars, thoſe are moſt neceffary and juft, which
(c) Hoftis apud Antiquos, Pèregrinus dicebatur.
Pomp. Feftus.
Indicant duo-
So alfo Cicero-" Hoftis enim apud majores noftros is
dicebatur, quem nunc Peregrinum dicimus.
decim Tabulæ, Aut Status dies cum hofte.
verfus Hoftem aterna auctoritas.
Itemque, Ad-
De Offic. L. 1. Chap. 12.
are
176
LAW OF NATIONS OF ·
are made by Men againſt wild beafts; and
next to them, thoſe which are made by the
Greeks againſt Strangers; "who," fays he,
66
(6
1
are naturally our Enemies, and for whom
we are perpetually laying fnares." (d)
Theſe opinions may ferve to explain fe-
veral of their tranfactions which have been
deſervedly confidered as difgraceful to them;
and among the reft, the fhameful treatment
of the Ambaſſadors of Darius, by the two
moft renowned of their Republics, which has
been thought by fome to have been the mere
effect of the turbulent ſpirit of the Athenian
Democracy and a direct violation of the Law
of Nations. (e) Poffibly however, it was not
fo much an infraction of Law, as a compli
ance with the prejudices above mentioned,
which taught them another ſort of ſyſtem to
be obſerved towards Strangers. (f)
In
(d) Ariftot. Polit. L. 1. C. 8. & Ifocrat. Orat. Panathen.
See Grotius' Remarks. D. J. B. & P. 2. 20. 40. 3.
(e) Rollin. Hift. Anc.
(ƒ) It is remarkable that XERXES, Barbarian as he was,
fhewed he understood the Laws of humanity better than the
Spartans themſelves. That people conceiving themſelves
under the indignation of Talthybius for their treatment of a
Character
THE GREEKS AND ROMANS.
177
In the earlier ages of their hiftory, the pro-
feffion of Piracy was fo far from being held
diſhonourable, that it was publickly avowed;
and fo late as the time of TARQUIN at Rome;
above four hundred years after the age of
Lycurgus, and cotemporary with Solon and
Pififtratus, (when the Athenians are faid to
have had both Tragedy and Comedy among
them, and Greece might therefore be thought
to have affumed a more civilized form;) the
Phoceans, on account of the fterility of their
foil were forced to exercife Piracy, a pro-
feffion which according to the hiftorian was
in thofe times held honourable. (g)
But whatever might be their opinions re-
ſpecting the rights of Strangers, their cuſtoms
with reſpect to one another were hardly leſs
Character fo facred as that of an Ambaffador; delivered up
two of their Citizens as an expiatory Sacrifice to the Suc-
ceffor of the Perfian Monarch; who, out of magnanimity,
fays Herodus, declined following the bad example of the
Spartans.-Herod. L. 7. C. 136.
(g) Plerumque etiam latrocinio maris, quod illis tem-
poribus, (Tarquinii Regis) gloriæ habebatur, vitam tole-
rabant.Juft. Hift. L. 43. C. 3. N. 5.
VOL. I.
N
ferocious.
178
LAW OF NATIONS OF
ferocious. The cruelty of their Laws of War
is well known; and inftances of it might be
multiplied upon one another, which would
fill the more humane European of modern
times with horror. The Slaughter of Pri-
foners in cold blood; the execution of Gene-
rals after unfortunate warfare; (a humbled
State which commands the lenity and com-
paffion of Chriftian Enemies ;) the hardships
of perpetual Slavery; the abfolute annihila-
tion of Cities; the wanton puniſhment of
Hoſtages; the bloody perſonal revenge often
taken upon Enemies, only for having per-
formed their duty well;-theſe are the points
moſt eminent in the hiftory of their public
intercourfe together.
Examples of this, have already often been
felected by others; nor is it neceſſary for
thofe acquainted with the Grecian ſtory to
enumerate them. It will not however be im-
proper to bring to their recollection, the
ftrange inconfiftency of character in the
Athenians, who were reckoned the moſt po-
liſhed people of Greece, which marked them
in the courſe of their wars. When about to
attack Scione, Melos, and Mytelene, they past a
vote
THE GREEKS AND ROMANS.
179
vote to deftroy all the inhabitants of the
former place who were above the age of pu-
berty; in the two latter, all, without ex-
ception.
During the courſe of the Peloponnefian
war, the Spartans and Corinthians having fent
an Embaffy through Thrace into Perfia; the
fon of the Thracian King was prevailed upon
to ſeize the Ambaffadors and deliver them
to the Athenians. Theſe unfortunate men,
cloathed with a character univerſally and uni-
formly held facred, by the moſt ignorant Na-
tions, were put to death without trial, by a
Decree of a People eſteemed the moſt en-
lightened of their time. (¿)
It is wonderful to obſerve ſuch a people in
the fame war, calmly voting in full affembly
thoſe acts of inhumanity which ſo much dif-
grace them. Had they been committed in
hot blood, or with arms in their hands, much
might be faid for them; but in general, when
a place which had ftood a fiege, was un-
happy enough to be reduced to furrender;
(b) Thucyd. L. 2. C. 67.
N 2.
the
7
180
LAW OF NATIONS OF
the ferocious populace were formally fum-
moned, in Athens itſelf, to diſpoſe of their
Captives; and the unhappy men commonly
became victims to the avowed maxims of
their Law.
In this manner it was that the Eginetans,
brought in captivity from Thyræa in Laconia
to Athens, were all of them executed in cool
blood. Nor, as might be expected, did they
here, or in a variety of other inftances, do
any thing not warranted by the example of
their enemies. The Spartans at the furrender
of Platea, purſued the fame bloody maxims,
and revenged themſelves after the battle of
Egos Potamos, by executions equally as bar-
barous and unjuſtifiable, as thoſe ordered by
their inhuman rivals. Through the whole
progreſs of the war indeed, the fame fpirit is
to be diſcovered; and wherever the Merchant
Ships of Enemies or even neutral Powers
were met with, the ufual mode was to put
the crews to death.
}
Slavery was univerfally allowed among
them, and a more diſguſting picture than that
which it preſents to us, is fcarcely to be
met with.
The
THE GREEKS AND ROMANS.
181
The circumftances indeed which attended
the Lacedæmonian Slavery, are ſhocking beyond
conception; nor of all the examples of cruelty
and wickedness, which ftain and difgrace the
annals of mankind, can any thing be found
more horrid, or more revolting to nature than
the Kpuzha, or ſecret Law of the Spartans. By
this, when the Heloto or Slaves, became
fo numerous as to give umbrage to their
Maſters, it was allowable to thin them by
death, and that in a manner the moſt mi-
ferable, on account of the apprehenfion of it
in which they muſt always have lived. Some
of the ableft of the young Men were dif
patched privately into the country, armed
with daggers and taking with them a little
neceffary proviſion. Thefe, in the day time,
hid themſelves in the Thickets and Clefts, and
in the night iſſued out into the highways, and
murdered all the Helots they could light
upon. Sometimes however they fet upon
them in the day, while at work in the fields,
and thus in the very act of procuring pro-
vifion for their Mafters. (i)
(i) Potter's Antiq. 1.619.
N 3
Such
1
182
LAW OF NATIONS OF
|
Such barbarous actions however, though
they may give a fhock to our compaffion, do
not move our wonder or indignation, fo much
as thofe deliberate violations of reaſonable and
natural juſtice, which we might have ex-
pected any where but in that country which,
from the number and eminence of its philo-
fophers, ought to have been nicely accurate
in it's maxims concerning right.
" It ap-
pears," fays a modern author, who has ably
delineated their policy and hiftory," to have
been very generally held among the Greeks
of that age, that Men were bound by no
duties to each other without fome express Com-
pact." The property of Foreigners might be
any where feized, and themſelves condemned
to ſlavery, or even put to death without any
breach of human Law; and fo far from any
breach of divine Law, that prayers were ad-
dreffed to the Gods for favour and affiftance
in the commiffion of fuch violences.
Thoſe connected with them by focial com-
pact they deſcribed by a term peculiar to
themſelves, ENSPONDI; meaning originally,
perſons with whom they had poured wine to
the Gods, as a proof of their Compact. Thofe
who
THE GREEKS AND ROMANS.
183
who had forfeited their claim to the benefit
of this fort of alliance, were called ECSPONDI,
that is, Out of Compact, or Out-laws. Upon
the furrender of Platoa to the Spartans, the
Commiffioners of the latter determined that
their priſoners were ECSPONDI; they were
aſked one by one, whether in the preſent war
they had done ſervice to the Lacedæmonians ;
and anſwering in the negative, they were fe-
verally led afide and put to death to the num-
ber of two hundred Platoans and twenty-five
Athenians. (k)
We may here obſerve a remarkable fimi-
larity between this mode of proceeding and
that of the Commiffioners of the French Con-
vention, towards thofe of their own Nation
taken in war, whom they condemn (and in
this they are not inconfiftent) as guilty of
Treafon. In fuch tranfactions therefore, the
Greek Law of Nations confidered the Subjects
of one State in open hoftility with another, in
the fame point of view, as modern Nations
confider thoſe that are guilty of Treafon;
(k) Mitford's Hift. of Greece, C. 15. S. 7.
NA
which,
184
LAW OF NATIONS OF
which, as there was no allegiance due, was
the ſummit of Injuſtice.
So much then for the Greek Law of Na-
tions; we will now turn to the Romans, who,
it muſt be confeffed, prefent to us a picture
fomewhat more regular.
Many of their Inftitutions, as well as many
facts of their Hiftory, prove to us that they
went far beyond their rivals, in this Science.
Nor can it be faid that they improved upon
the Grecian Law, fo much as that they had an
original one of their own, fuperior to the
other in regularity and equity.
So early as in the hundred and fourteenth
year of their State, when ANCUS MARTIUS
is faid to have begun his reign; à Ceremony
was inftituted among them which would do
honour to the wifeft and moſt poliſhed of the
modern Nations; I mean their famous mode
of declaring War. That Prince is defcribed
by Livy as of a genius between that of Ro-
mulus, and Numa; and as the latter foftened
the rugged minds of his new People by the
Ceremonies of Religion; So Martius wiſhed
to temper their Valour with Juſtice, by the
inftis
THE GREEKS AND ROMANS,
185
inftitution of Ceremonies in War. Whenever
therefore the State had caufe of complaint
againſt another, a Herald, called the PATER
PATRATUS, or Chief of the College of
Heralds, was firſt fent to the frontiers of the
offending Nation to demand redrefs; and if
within thirty-three days, juftice was not done,
then, and not till then, they were to be con-
fidered as Enemies and purfued with fire and
fword. Notice of this even was, after all, to
be given, by the return of the fame Herald to
the Frontiers and cafting a Javelin into the
hoftile Territory. (1)
So much generofity in an infant and pre-
carious Nation, promiſed many interefting and
magnanimous actions in the courſe of their
Hiſtory afterwards; and accordingly, without
meaning to go into the compariſon of their
examples of patriotiſm with thofe of Greece,
we ſhall not be far wrong in ſaying that they
exhibit much greater inftances of regular Law,
in their intercourfe with foreign Nations.
Theſe are for the moſt part fo well known,
that it would be unneceffary as well as te-
dious to dwell on them; many of them how-
(1) Tit. Liv. L. 1. C. 32.
ever
186
LAW OF NATIONS OF
ever ought on this occafion to be fet forth,
as it proves them to have had very ftrong and
fuperiour ideas, of the duties which Nations
owe to one another. Some of them indeed
will for ever form the baſis of many modern
queſtions; As the tranſaction of POSTHUMUS
with the SAMNITES, the celebrated epoch of
the CAUDINE FORKS. The difavowal of this
General's conduct by the Senate; their offer
to fend him back; the refuſal of the Samnites,
and the conſequent arguments on both ſides,
(m) furniſh the matter for the very intereſting
and important part of modern Jurifprudence,
called the SPONSIO, about which there are
ftill various opinions. (n)
Their notions alfo of military Law, in re-
gard to foreigners, went in fome refpects as
far as our modern refinements.
There are,
fays Cicero, certain duties to be complied
with even towards thofe who have injured
you; and in puniſhing, and avenging, there
is a particular mode to be obferved, which
gives rife to the Laws of War. (0)
(m) Vid. Cicer. de Offic. L. 1. C. II.
(n) See Vattel. 2. 14. 209.
(0) Cicer, de Offic, L. 1. C. II.
Amongft
THE GREEKS AND ROMANS.
187
Amongst thefe Laws it feemed to be laid
down, that no Roman could fight even for
his Country without a Commiffion; which in
all refpects is fimilar to the modern notions,
that thoſe who fo fight may be puniſhed as
Robbers (p)
In compliance with this therefore, when
the younger Cato was difmiffed by Pompilius
from his Province, with the reft of the Officers
of his Legion, and wished to remain behind
for the rest of the Campaign; his Father wrote
to Pompilius, defiring him to adminifter the
military Oath to his Son, de novo; as the
Legion in which he had ferved was no longer
under his command,
The letter alfo to his Son, lays it down
that it was contrary to Law for one not a
Soldier to fight with an Enemy. (q)
The ſpirit of the reft of their Laws of War,
was generally of the fame regular caft; we
ought not, ſays CAMILLUS, (at a time when
(p) Vattel. D. des G. L. 3. S. 226.
(9) Negat enim jus effe, qui miles non fit, pugnare cum
hofte.-Ib.
their
188
LAW OF NATIONS OF
their civilization was comparatively back-
ward) to aſpire ſo much at victory, as to en-
deavour to avoid the infamy of obtaining it
by baſe means; (r) and one of their earlieſt
maxims was, that they ſhould wage war with
not more valour than juſtice. (s)
It was a compliance with theſe principles
that gave birth to many of their moſt virtu-
ous, if not their moſt brilliant actions: that
Clelia was fent back to Porfenna; that Regulus
returned to Carthage; and thoſe who treated
of an exchange of priſoners after the battle of
Canna, to Hannibal; that Fabricius refuſed to
affaffinate Pyrrhus; and Camillus, to receive
the children of the Falifci.
A fenfe alfo of the neceffity of enforcing
fuch doctrine upon others, produced from
them many ſeverities toward foreign Nations
and the utter deftruction of one of the nobleſt
Cities of GREECE was profeffedly the con-
fequence of her having infringed the rights of
Ambaffadors.
(r) Plutarch. Vit. Camill.
(s) Juftique ea, non minus quam forte didicimus ge-
nere. Liv. L. 5. C. 27.
Theſe
THE GREEKS AND ROMANS. 189
Theſe rights themſelves formed one of
the moſt remarkable features of their Law,
and are defervedly celebrated as being better
underſtood by them than by any of the
antient Nations. Indeed the very exiftence
among them of a College of Heralds, to prefide
over and expound rules, exprefsly drawn up
for their conduct toward foreigners, beſpeaks
them a People far advanced in the Law of
Nations confidered as a ſcience.
With all their fuperiority however, they
gave into the rugged notions which the want
of a milder religion, and confequently a more
equitable ſyſtem of morality, made them ima-
gine nothing more than juft; and though
they poffeffed magnanimity beyond moft
others, yet they were generally cruel, and in
many reſpects ungenerous.
Of this, the whole plan and ſcheme of their
TRIUMPHS are an example. To depreſs an
enemy in his ſpirit and pride of mind, (the
only confolation he has left, when his ſtrength
and his power are annihilated ;) To debaſe
and mock his condition becauſe we fear it no
longer; To exhibit him to a gazing, fero-
F
cious,
190
LAW OF NATIONS OF
cious, and fometimes, defpicable multitude;
an example of the uncertainty of fate, or per-
haps (what is infinitely worfe for his own
feelings) of mifconduct, and perfonal im-
becility; is furely to add infult to injury, and
to ſharpen unneceffarily the ftings of mif-
fortune. Yet to do this, was the higheſt am-
bition, and almoſt the higheſt reward of a
Roman General. The captives of his arm
were led a miferable inftance of fallen gran-
deur, behind his Chariot Wheels; and the
higher their rank, their power, or their cha-
racter, the greater the triumph of their
inexorable Conqueror. Death itſelf by the
Executioner in priſon, was even ſometimes
the clofing ſcene of this inhuman ſpectacle; a
puniſhment which after fuch humiliations,
was rendered furely lefs than ever neceffary,
either as a matter of policy, or revenge. (†)
The
(t) The following animated paffage from the Speech of
Vibius Virius against the Romans, will fufficiently prove
to us the favage inhumanity of their proceedings towards
prifoners. "Cruciatus contumeliafque quas fpérat hoftis,
« dum liber, dum mei potens fum, effugere morte, præter-
"quam honefta, etiam leni, poffum. Non videbo APP.
« CLAUDIUM & Q. FULVIUM victoria infolenti fubnixos;
«Ε neque vinctus per Urbem Romam, triumphi fpectaculum
"trahar,
1
THE GREEKS AND ROMANS.
191
The utmoſt ravage and bloodieft conduct in
open and doubtful war, is perhaps more fup-
portable than ſuch a ſyſtem. (u)
Nor were they lefs free from reproach,
when ſharpneſs of mind, rather than ftrength
of arm, was neceffary for their intereft; when,
for example they came to negotiate, to make,
and to interpret Treaties. They here exhibit
inftances of chicanery, any thing but con-
fiftent with that magnanimity and force of
foul, which were peculiar to them on other
occafions. Of this, nearly the whole of
the third Punic War, particularly their laſt
«trahar, ut deinde in carcere, aut ad palum deligatus,
"lacerato virgis tergo, cervicem fecuri Romanæ Subjiciam.
Liv. L. 26. C. 13.
(u) See PLUTARCH's account of the Triumph of Paulus
Emilius. After the greateſt diſplay of acquired riches,
there came, fays he, the king's Children led captives,
and with them a train of Nurſes, Mafters, and Governors,
who all wept and ftretched forth their hands to the Spec-
tators, and taught the little infants to beg, and intreat their
compaffion. After thefe came Perfius himſelf, clad all in
black. He looked like one altogether aftoniſhed and de-
prived of reaſon through the greatneſs of his misfortunes.
Plut. in Vit. P. Œmil.
Perfius afterwards deſtroyed himſelf in priſon.
(7
tranf
192
LAW OF NATIONS OF
tranſaction with Carthage; and the quibble of
QUINT. FARIUS LABEO, to deftroy the Fleet
of Antiochus, are memorable examples. (v)
The whole courſe of their hiſtory indeed,
marks them a people determined to purſue
their own great object, of dominion, by every
mode, generous or fubtile. They were as
crooked in the cabinet, as they were ener-
getic in the field; and the conduct of the
Senate for ages together, has been celebrated
as a maſterpiece in politics, in a ſenſe even
Machiavellian.
I do not mean to fay that the inftances
which may be ſelected from their hiſtory, of
bad faith, and improper interference in the
affairs of other Nations; of open violation of
the rights of neutral powers; and of public
plunder and robbery which every where cha-
racterize them, (w) were not often blamed
(v) Antiochus being defeated by that General, agreed to
give up to him one half of his Fleet. The manner in which
the Roman executed the Treaty, was by cutting every
Galley in halves, and thus depriving him of the whole.
Valer Max. L. 7. C. 3.
(w) See the Comments of Montefquieu upon theſe parts
of their Hiſtory.Grand and Decadence des Rom.
འ
by
THE GREEKS AND ROMANS.
193
by their own writers, or may not be equalled
by the conduct of very modern and en-
lightened Nations. But in the latter cafe,
whatever may be the effect of power in com-
manding fubmiffion, it is always well known
when the Law of Nations is broken; cotem-
porary States are appealed to, and the cauſe is
tried, in argument at leaſt, by known prin-
ciples and fettled rules. Of this mode of pro-
ceeding the Antients, either knew nothing, or
did not make uſe of it; which warrants a fair
inference, that what was thus done, was not
confidered as an infraction of law. It is the
more warrantable, becauſe of all the nations
of the world, none ever paid a more religious,
or indeed fuperftitious deference, than the
Romans, to the force of promiſes and oaths;
a point of their character which ftands fore-
moft in the numerous and able critical dif-
quifitions, to which the actions of this won-
derful people have ſo often given birth.
But whatever was their inhumanity, or the
bad faith of their government towards foreign
princes, in their progrefs to dominion; their
conduct towards the bulk of the people they
conquered, was for the moſt part exemplary,
VOL I.
Q
and
194
LAW OF NATIONS OF
}
and far different from that which we have
noticed of the Grecians. To civilize by con-
queft; to melt down and incorporate the
fubdued Nations with their own, and derive
affiftance from them, as from their fellow
Citizens, in future attempts againſt others; was
a great part of their policy. But to act thus,
was directly contrary to that revengeful and
bloody spirit which diſtinguiſhed the Grecian
Politics. And accordingly we find, that after
having puniſhed, or got rid of the CHIEFS of
the Nations they fubdued, the people for the
moft part were left in the enjoyment of their
religion and cuftoms, much of their pro-
perty, and often of their
very Government
itſelf. (*)
(x) I an aware of many inftances of feverity towards
prifoners, which may feem to militate againſt this pofition;
particularly that of the Tentonic women, who, upon the de-
feat of their hufbands by Marius, fent a deputation to that
General, to ftipulate for the fecurity of their chaſtity and
freedom, but were refuſed, and voluntarily inflicted death
upon themſelves and children. Flor. L. 3. C. 3.-But
it muſt be remembered that this related only to an Army
which had juft fought, not to a People conquered. Thefe
Tuetones had no Country; they were in queft of one; and
there was therefore no reaſon of policy, why they ſhould not
comply with the maxims of the time, which, with reſpect to
the flavery of prifoners, were the fame among the Romans
as among the Greeks,
This
THE GREEKS AND ROMANS.
195
This principle of action, poffibly took its
rife from the accidental conduct which they
were obliged to purſue on the firſt foundation
of their State. A handful of people brought
together on the hazard; without connection,
almoſt without territory, and abfolutely with-
out wives; could not purſue thoſe inexorable
maxims which regular and long eſtabliſhed
States fell into. At leaſt they could not ex-
pect to be rapid in their augmentation, except
by the very mode which the policy of Romu-
lus dictated; and once begun, they might
continue it from habit alone, if not convinced
by experience of its fuperior benefit.
f
This however has been differently ac-
counted for by a writer of reſearch and learn-
ing of the preſent time.
* In confidering the various effects upon the
Law of Nations which are produced by dif
ferent modes of life, Dr. Falconer refers this
variation between the Greek and Roman
Law, to the manner of living in the two
Countries. In the Savage and the Shepherd
States, fays he, much land is neceffary for the
maintenance of the people; and when one
People
O 2
196
LAW OF NATIONS OF
People is conquered by another, the defire of
encreaſing their quantity of food by the ac-
ceffion of their territory, makes the Con-
querors thin the Inhabitants by military exe-
cution. On the other hand, where agricul-
ture prevails, as much lefs land is neceffary,
there is no reaſon why the priſoners ſhould
not enjoy their lives, when there is enough
for their fupport. It was not then extra-
ordinary, that the Romans whofe agriculture
could maintain additional numbers, fhould re-
ceive their prifoners into their Society; while
the Greeks who in feveral refpects were in a
fituation fimilar to the people formerly de-
fcribed, (thofe in a favage and Shepherd State)
fell naturally into more ferocious maxims.
He goes on to prove this latter pofition, by
the number of Colonies which Greece fo
often fent forth; a fure mark that there
was not enough for their maintenance at
home. (y)
Now I own this reafoning appears by no
means fo ftrong as to produce conviction, For
(y) Falconer on Climate, B. 6. C. 3.
in
THE GREEKS AND ROMANS.
197
in the firſt place, Commerce as well as Agricul
ture will produce food, if not in as great a
degree in very rich foils, yet in a much greater
one, in foils comparatively barren, and if the
ROMANS were Hufbandmen, they defpifed
The GREEKS (particularly the
commerce.
ATHENIANS and CORINTHIANS) not only
did not defpife agriculture, but roſe to great
eminence in commerce. Many of their an-
ceftors came from PHOENICIA and from
EGYPT; and the commercial fpirit of the
one, and the agricultural ſpirit of the other,
would in their new fettlements find ample
room for the exerciſe of both. For while the
great length of their Coaſt, their numerous
Harbours, and the multitude of Rivers, with
which their whole Country was interfected,
held out the greateſt incitements to Trade
the fertility of a number of their provinces,
equally incited them to a vigorous culti-
vation.
A
;
The face of the country has been accurately
delineated by their own writers, and their ac-
counts have been well collated by modern
critics-and though ARCADIA, DORIS, ETO-
LIA, and ATTICA, are deſcribed as extremely
0 3
moun
198
LAW OF NATIONS OF
}
mountainous ; yet the latter is faid to have
been fertile in Olives and Figs; and the vales
of THESSALY, BEOTIA, LOCRIS and PHOCIS,
and particularly ARGOS and MESSENIA, were
fruitful in corn to a degree of celebrity.
With reſpect to the colonies fent out by
the GRECIANS, the argument, does not per-
haps apply fo much to them as to the ROMANS
themſelves, whofe colonies were a well known
political inftrument for fubjugating foreign
Nations, and extended far and wide.
But the reaſon againſt this opinion which,
it fhould feem, ought naturally to have moſt
weight, is drawn from the high ſtate of per-
fection to which the Greeks attained in all
the refinements of Art and Science; and
which even, while they were forced to crouch
under the fword of their rivals, rendered them
ftill fuperiour not only to their conquerors,
but to all the world.
Such refinement however is totally incon-
ſiſtent with the ſavage, or ſhepherd ſtates; for
men do not commonly attain, even to a mo-
derate degree of merit in the Arts, till leifure
has
THE GREEKS AND ROMANS.
199-
has been afforded for the divifion of pro-
feffions and of labour, by the eafe and cer-
tainty by which fubfiftence may be ac
quired.
We pretend not however to account, farther
than we have done, for this marked differ-
ence between the Greek and Roman Law
of Nations;-contenting ourſelves with ob-
ſerving the fact, as a ftrong corroborative
proof of our point, that the Law in
queſtion, is only that which obtains among
a particular Clafs or number of States. The
Towns of Italy and of Greece lie nearly in
the fame latitudes: between Brundufium and
the Acro Ceraunian Promontory, there is not
more than one degree of longitude; and be-
tween Rome and the Ionian Nations, (nearly
the extreme points of the two Claffes of
People) not quite fixteen degrees; the ages
of their Republics were almoft the fame; the
time at leaſt when the Roman maxims were
moft inculcated, and the improved ftate of
Greece, were abfolutely cotemporary, (≈) and
(x) There were not forty years between Alcibiades
and Camillus.
04
in
200
LAW OF NATIONS, &c.
in their religion any effential variation is not
eafily diſcovered; yet fo marked, and fo deep
is the line of difference, which we find in
their Laws of Nations.
',
Such then was the character of the Law
among theſe two remarkable SETS of PEOPLE,
till the one was incorporated with the other
by conqueft, and both together yielded at laſt
to a deſtiny, which for a long time covered
the whole European World with mifery, and
darkneſs.
CHAP,
SCANDINAVIAN LAW OF NATIONS. 201
CHAP. VIL
THE PRINCIPLE OF THE SCANDINAVIAN LAW OF
NATIONS.
IN that unfortunate period, when the popu-
lous North poured forth her multitudes to
overwhelm the far famed Miſtreſs of the
World; when every thing that was elegant,
and every thing that was wife, gave way to
the rugged ignorance and deſtructive fury of
our Scythian Anceſtors; the Laws of all
kinds as well as the difcipline of the Romans,
were loft amid the general uproar. The
Scandinavian fwarms, confumed, or ſwept
off, every thing that came in contact with
them; the
the old Nations melted away; no
veftige of former civilization was left, and
the little humanity or order that had been
cultivated, fled from before a people who
deſpiſed, or never had been acquainted with
them. A new Set of Nations therefore got
poffeffion of the World; and a change in
notions and manners; a different language,
and a different Religion, were introduced.
23
Theſe
1
202
THE PRINCIPLE OF THE
1
Theſe new Mafters of EUROPE were of the
moft rugged caft; they delighted wholly in
blood; war was their paſtime, and flaughter
their feaft; and thefe manners, generated
perhaps at firſt by the climate, were con-
firmed by their Religion. (a)
f
The preſent Nations of Europe are faid to
fpring from two claffes of people; the CEL-
TIC and the SARMATIAN; in their race
very different, and in their religious notions
by no means the fame. The firſt gave origin
to the Gauls and Britons; the laft to the
Scandinavians or Goths. The former of
thefe, as is well known, were taught cer-
tain myſteries by the DRUIDS which are now
impenetrable from the lofs of the documents
that contained them; (b) the latter were ab-
(a) See a full account of their Character and Inftitu-
tions in Cæfar and Tacitus; Pelloutier. Hift. des Celtes.
Mallet's North. Antiquities. Temple on Heroic Virtue.
Bartolin. de caus. contempt. Mort. Gibbon's Account of
the Scythians; Decl. and Fall. ch. 26. and the elaborate
Notes of Robertfon. Introduc. to ch. 5.
(b) The Britiſh Druids taught their myfteries in verfes
which their followers were fometimes twenty years in learn-
ing. Cæfar De Bell. Gall. C. 3. Thefe are entirely
loft.
folute
SCANDINAVIAN LAW OF NATIONS. 203
folute Polytheifts, which may be gathered
from various monuments that remain. (c) In
thoſe points however which could at all influ-
ence their public characters, or the fyftem on
which they proceeded towards other nations,
there was a terrible fimilarity between them.
Both of them believed in the immortality
of the foul, taught to the one by the Druids ;
to the other by ZAMOLXIS; and both endea-
voured to deſerve Elyfium in a manner
equally horrid to themſelves and dangerous
to their neighbours; fince they concurred in
imagining that violent death was the only
paſſage to Paradiſe.
It is wonderful under this influence, to
what a height they carried their contempt of
life; infomuch that death, and that, in its
moſt violent form, feemed to be an objec
of their courtship, and he who died of old
age was covered with infamy. To die with
his arms in his hands, was the vow of every
(c) They are very authentic, and were brought together
into two collections called the Edda, by SÆMUND SIG-
FUSSON, born in 1057, and SNORRO, Judge of Iceland,
in 1215. (See the North. Antiq. 2. 21, 22. Pref.)
free
204
THE PRINCIPLE OF THE
free man, and the pleafing idea they had of
this kind of death, led them naturally to
dread the thought of perifhing by diſeaſe or
old age.
Hence in their legends and poems,
the warriours as they fell in the field, are
reported to die finging or laughing; (d) and
hence when by accident, (which more poliſhed
men would call lucky, but which they
deemed a misfortune,) any of them advanced
'in fafety to years, in fpite of the perils of
war, the cuſtom was to deftroy themſelves,
either by their own hands, or by being car-
ried into a field of battle, or by having re-
courfe to the kindneſs of their friends to per-
form this acceptable fervice for them. (e)
Sometimes
(d) King REGNER, who died finging the pleaſure of
death in a field of battle, cries out at the end of a Stanza,
«The hours of my life arc paſſed away, I ſhall die laugh-
"ing." The conclufion of the Eulogy of a king of Nor-
way is, "Hereafter it fhall be recorded in hiftory that king
"HALFER died laughing;" and in praife of a man who
died in fingle combat, as recorded by Saxo Grammaticus,
it is faid that he fell, laughed, and died.-North. Antiq, 1.
207.
(e) Northern Antiquities, 1. 200.
There are in the fame book, feveral curious inftances of
this contempt of the pains of death. A young warriour of
Jomfbourg,
SCANDINAVIAN LAW OF NATIONS. 205
Sometimes they threw themfelves down
precipices into the Sea; and in Sir William
Temple's time, there was ftill in Sweden a
place called ODIN'S HALL, the name of
which was preferved as a memorial of this
ferocious cuſtom. It was a great bay in the
Sea, encompaffed with fteep and rugged rocks;
and they hoped by the boldnefs of fuch a
violent death, to renew their pretence to an
admiffion into the hall of their founder and
fupreme God, which they had loft by failing
to die in combat, and with their arms. (ƒ)
Jomfbourg, in Pomerania, having been made prifoner,
and led to execution after the cuſtom of the time, begged
that he might not be led to punishment like a fheep;
"Strike the blow faid he to his executioner in my face, I
"will fit ftill without fhrinking, and take notice whether
"I once wink my eyes, or betray one fign of fear in my
"countenance."
Another warriour having been thrown upon his back in
wreſtling with an enemy, and the conqueror being without
arms to diſpatch him, the vanquished man promiſed to wait
quietly in that poſture, till the other went for a ſword to
kill him, and he faithfully kept his word. Id. 1. 205, 207.
(f) It was related to Temple, by Count Oxenfteirn,
the firſt of the Swediſh Ambaffadors at Nimeguen. See
Temple's Mifcellanea, Part 2. Eff. 3. on Heroic Virtue,
and North. Antiq. 1. 210.
1
There
206
THE PRINCIPLE OF THE
1
There was however this difference between
the notions of paradife among the two peo-
ple; that the CELTS imagined thoſe who
died of natural deaths, were merely deprived
of happineſs; while the SCANDINAVIANS
punished them "in caves under ground, all
dark and miry, full of noiſome creatures,
of ſtench and mifery. (g) The enjoyments
of the one were alfo more mild than the
other; the CELTS paffing to what they called
FLATH INNIS, or the Noble Ifland, which
is deſcribed as green and flouriſhing:(b) The
Goths to the palace of ODIN, who to uſe Sir
William Temple's expreffions, eternally kept
open houſe for all fuch Guefts, where they
were entertained at infinite tables, in per-
petual feaſts and mirth, caroufing, every
man, in bowls made of the fkulls of ene-
mies. (i) The modes of worſhip among
both races were however, horrible to the
laft degree. The Druids facrificed prifoners
of war by hundreds, by placing them in
gigantic idols made of wicker, and burning
(g) Temple on Heroic virtue.
() Macpherſon's Introd. to Hift. of G. Britain.
(i) Temple on Heroic Virtue.
them.
SCANDINAVIAN LAW OF NATIONS. 207
The Inhabitants of Coerland
them to aſhes.
are ſaid to have been a cruel race, whom all
others avoided, " propter nimium Idolatriæ
cultum ; (k) and thoſe of Eftland to have been
worſhippers of Dragons and Birds of prey,
to whom they offered up living men, bought
of the merchants, and were particularly nice
in chufing out thoſe of peculiar beauty. (1)
Hence then it appears that it was a point of
their very Religion, to become familiar with
flaughter; and it was not merely their diſpoſi-
tion, but their bounden duty, to fpread about
them far and wide, what Chriftianity teaches
us to confider as the moſt afflicting of evils.
The Heroes, fays the Edda, have every day
the pleaſure of arming themſelves and cut-
ting one another in pieces, but as foon as the
hour of repaft approaches, they return on
horſeback, all fafe and found. (m) In this
frightful Mythology alſo, their God ODIN,
k) Adam. Brem. de fitu Dan. 12.
(1) Nam et ipfi Deum chriſtianorum prorfus ignorant.
Dracones adorant cum volucribus, quibus etiam vivos.
litant homines, quos a mercatoribus emunt; diligenter
omnino probatos ne maculam in corpore habeant, pro qua
refuftari dicuntur a draconibus. Id. 13.
(m) North. Antiq. 1. 120.
is
208
THE PRINCIPLE OF THE
is called "The terrible and fevere God; the
"father of flaughter; the God that carrieth
“defolation and fire; the active and roaring
"Deity; he who giveth victory, and re-
"viveth courage in the conflict; who nameth
"thoſe that are to be flain." (n)
✔
It will be not lefs agreeable than curious
tó obferve, as we fhall do in the courſe of
this work, how the horrors of theſe cuſtoms
came to be loft, amid the altered manners of
Europe; and how the very language of na-
tions when they spoke to
one another in
their Treaties and public Inftruments, was
expreffive of a fpirit the moft mild and the
moft oppoſite to what has been recorded.
Upon the whole then it follows plainly,
that with fuch maxims and morals, not only
the municipal cuſtoms, fuch as they might
be, but the Law of Nations of the Northern
people, muſt have been far different from
that comparatively regular one of the Ro-
of which we have been recounting
the particulars. Their rules of Right, indeed,
mans,
(2) North, Antiq. 1. 86, 87,
far
SCANDINAVIAN LAW OF NATIONS. 209
far from checking their dreadful and murder-
ous inclinations, were themſelves fo warped
and adapted to them, that they gave them freſh
force. They looked upon war, fays M.
Mallet, as a real act of juftice, and eſteemed
ftrength as an inconteftible title over the
weak; as a viſible mark that God had in-
tended to fubject them to the ſtrong. They
had no doubt but that it was the will of the
divinity to eſtabliſh the fame kind of depen-
dance in this reſpect, as among other animals;
and fetting out from the principle of the
inequality of mankind, as modern Civilians
proceed from the principle of their equality;
they inferred that men had no right to what
they could not defend, and this maxim there-
fore formed the baſis of their law of na-
tions. (0) Accordingly, they made open
war upon all the order and regularity that
were known; and within a very
and within a very few years
after the firft eruption of this bloody race, a
complete revolution in Law, as well as in
every thing elfe, took place throughout
Europe. The Roman people, language, and
VOL. I.
(0) North. Antiq. 1. 200.
P
manners,
210 THE PRINCIPLE OF THE, &c.
manners, paſt wholly away; and with them
paſt away the Roman Law.
From this time therefore we muſt begin
as it were anew; and confidering the world
again in its infancy, or if you will, in a
favage ftate of Nature; we muſt watch its
progrefs once more from ferocity to civiliza-
tion; until from the moſt lawleſs habits, we
perceive it, under the influence of a milder
Religion, together with various local circum-
ftances, advancing in this part of Jurifpru-
dence, to comparative perfection.
CHAP.
FROM THE FALL OF ROME, &c. 211
CHAP. VIII.
THE HISTORY OF THE LAW OF NATIONS IN EUROPE,
FROM THE FALL OF THE ROMAN EMPIRE TO THE
ELEVENTH CENTURY.
THE peaceful and well protected Inhabitant
of a modern European State, will ſhudder at
the picture which is now about to be fet
before him. More particularly the happy
native of Britain, will have reafon to rejoice
that he lives in different times, and from the
fortunate fituation of his foil, removed from
fuch horrors of war, as we are about to re-
cord, fhould the world be fo unfortunate as
to fee them revive. The Law which we are
now going to contemplate is nothing but a
chain of the moft cruel maxims; and as all
idea of principles or fcience, ſeems to have
been banished, or rather never to have been
entertained; to fhew what were the prece-
dents which the Law ſupplied, will be merely
to recount a ſeries of bloody and favage cuf-
toms.
P 2
THEODOSIUS
212
FROM THE FALL OF ROME
THEODOSIUS may be faid to have been
the laſt of the Emperors, who ſwayed the
Roman Sceptre in its full power and luftre.
The divifion of his mighty domain into two
Empires under his immediate Succeffors; if
it was not the caufe, was at leaſt the fignal
for that torrent of Barbarians to burſt from
their mounds which broke down the whole
force of the Roman power, and feparated the
world into new States. (a)
In the very beginning of the reign of AR-
CADIUS and HONORIUS, we find the repeated
attempts of the Barbarians growing effectual;
and long before the middle of the fifth cen-
tury, we may obferve the foundation of the
modern kingdoms of Europe, among the
provinces defolated by the different tribes of
Goths, Vandals, Burgundians, and Franks.
Eighty years fufficed to deftroy even the
name of the Weſtern Empire, and to reduce
the remnant of its power to the mere king-
(a)
Scanzianorum in reliquas mundi partes expe-
ditiones, et quafi inundationes, &c.-And. Bur. Suec.
Defcrip. 2.
dom
TO THE ELEVENTH CENTURY.
213
dom of Italy, under an Herulian Chief. (b)
A century more brought down upon theſe
devoted people; the Huns, the Avars, and
the Saxons, in order to complete the ruin
which others had begun.
The laws of war of theſe terrible Con-
querors, may be known by their effects. The
Romans were not merely fubdued, but anni-
hilated: their Cities did not fimply pafs from
old, to new Maſters; but they were abfolutely
reduced to a confufed heap of ruins. The
flight ſketch already given of the religion and
manners of many of the parent nations, may
in fome meaſure account for thefe bloody
maxims ; and it muſt be owned that the
defcendants of ODIN were not unworthy
their inexorable anceſtor,
Whether from the principles of fuch a Re-
ligion; the hatred they bore their Enemies;
their love of booty; or the mere favagenefs
of their difpofitions; their courfe was every
where marked with a deluge of blood; and
(b) ODOACER was the firft King of Italy, in the Year
476.
P 3
exter-
214
FROM THE FALL OF ROME
1
extermination feemed fo entirely their object,
that they have been not improperly likened
to wild Boars. (c) Gibbon compares the
Huns of Altila, to the Moguls and Tartars,
in their moſt ſavage ftate; and if the com-
pariſon be juft, miferable indeed muſt have
been the fituation of mankind. Among the
latter, the abuſe of the rights of war was
exerciſed with a regular form of difcipline:
Whenever a City was reduced to furrender
at difcretion, the Inhabitants were affembled
in fome adjacent plain, and a diviſion was
made of them into three parts. The foldiers
and young men were either enliſted among
their Conquerors, or maffacred on the fpot:
the young women were referved for other
purpoſes; and the old and infirm alone were
allowed to live, paying a tax. (d)
This was the conduct, when no extraor-
dinary rigour was fhewn; but the moft cafual
provocation; the flighteft motive of caprice
or convenience, involved the whole in an
indiſcriminate flaughter; and to uſe their
own expreffion, "Horfes might run without
(c) Partim naturam populi fuetam prælio, et fugientem
diffidia, inftar aprum.-And. Bur. Suec. des. 2.
(d) Vie de Gengifcan par La Croix paffim.
ftumbling,
TO THE ELEVENTH CENTURY.
215
ftumbling, where houſes and cities had once
ftood. (e) In conformity with theſe manners,
we find their history, a hiſtory of blood.
Above four millions of perfons were faid to
have been flaughtered by TAMERLANE;
ATTILA is efteemed his counterpart, and
may therefore be held to have deferved the
horrible appellation of the Scourge of God,
which this Scythian Savage was pleaſed to
affume among his other titles. (f) But ex-
clufive of the victims which fell before him
the waſte made by the Barbarians was com-
puted to amount to more then fix millions
of fouls, during the thirty-two years alone
which JUSTINIAN reigned; and inftances
might be multiplied upon inſtances, to fhew
that the cruelty of the detail was equal to,
if it did not ſurpaſs the horrors which the
(e) Gibbon. Dec. & Fall. ch. 34.
;
(f) Attila is thus defcribed by the author of the Ref-
publica et Status Hungariæ, p. 102. "Omniaque Cædi-
bus atque incendiis mifcens, tantum fui terrorem excita-
"vit, ut vel ad nomen ejus, non aliter quam furiæ cujuf-
"dam orco progreffæ omnes Nationes contremifcerent."
We may indeed judge of the flaughter of theſe wars, when
180,000 men are faid to have perifhed on Attila's fide alone,
at the fingle battle of Tolofa.Id. p. 103.
PA
grofs
J
216 FROM THE FALL OF ROME
grofs fum muft imply. In the Siege of
Topirus, the Sclavonians maffacred fifteen
thouſand male prifoners; others of their cap-
tives were impaled alive; or fufpended be-
tween four pofts, and beaten with clubs till
they expired; or encloſed in buildings and
left to periſh by fire.-The Thuringians, after
their defeat by ŒLIUS in the plains of Chalons,
murdered their hoftages as well as captives,
and put to death two hundred young Maidens,
by tearing them afunder by wild horfes, or
crufhing their limbs under rolling waggons;
The Avars, after offering their captives to
MAURICE at a low price, and being refuſed,
deliberately cut their throats as uſeleſs mer-
chandiſe. (g)
Such horrors gave rife to Fables that
were leſs unnatural than they may appear to
the enlightened minds of modern enquirers.
The Witches of SCYTHIA, who for their
foul and deadly practices had been driven
from fociety, were faid to have copulated in
the defert with infernal Spirits; and the
HUNS were the offspring of this execrable
(g) See Gibbon Dec & Fall. chs. 35: 42.
con-
TO THE ELEVENTH CENTURY.
217
}
conjunction. The LANGOBARDS were fup-
poſed to have Heads like thoſe of Dogs, and
to reſemble thoſe fierce animals, not only in
flaughtering, but in drinking the blood of,
their enemies. (b) Whatever the belief was,
the effect of their rage was confeffedly terri-
ble; infomuch that the fineſt and beſt peopled
Provinces were rendered naked and barren ;
and Africa, which on account of its beauty
and fertility, had been called by a writer of
the middle ages
Speciofitas totius terræ
"florentis," (i) was reduced to a ftate fo
dreadfully like that of a defert, that accord-
ing to the Hiftorians, one might travel
feveral days in it without meeting a man.
66
Nations that could make war thus terribly,
would never be delicate in their ſelection of
(b) This is Jornandes' ftory. Others, according to the
Author of the Refpublica et Status Hungariæ, derive them
from the more claffic origin of Fawns and Satyrs; others
again from MAGOG the Son of JAPHET.-Refp. et Stat.
Hung. p. 36.
Many of the Inhabitants of the Baltic Iſlands were fup-
pofed to have heads like dogs, and all males brought forth
by the Amazons, were imagined invariably to be of this
form.-Adam. Brem. de fitu Dan, 15,
(i) Victor.
a caufe
218
FROM THE FALL OF ROME
a caufe. It would be even doing them in-
juſtice to ſuppoſe that they ſtood in need of
any: The SCANDINAVIAN and GERMAN
People, the Parents of all the reft, were little
accuſtomed to wait the flow returns of labour
for fubfiftence, when they might acquire it
by the ſword? nor would they condefcend to
raiſe that by the ſweat of their brow, which
they could more eafily obtain by wounds
and blood. (k) It was ufual therefore among
them on the approach of the Spring, to
affemble and deliberate into what quarter
they ſhould carry the war,
the war, as a thing of
courfe. The hope of booty generally de-
termined it; and it was only to be avoided
by the payment of a tribute under the name
of a prefent. Even before thefe tributes
came to be regular, the withholding the
preſents of mere ceremony, gave riſe to very
cruel invaſions. That under fo firm a fol-
dier as VALENTINIAN, by the Alemanni,
aroſe from the indignity of their Chiefs at
the parfimony of a Roman Minifter, who
had leffened the value of the preſent they
(k) Nec arare terram aut expectare annum tam facile
perfuaferis, quam vocare hoftes et vulnera mereri: pigrum
quinimo et iners videtur, fudore acquirere quod poffis
fanguine parare.-Tacit. de Mor, Germ. 14.
were
TO THE ELEVENTH CENTURY.
219
were intitled to receive, on the acceffion of
a new Emperor to the throne. (1) That alfa
by the Arabs againſt the Soldiers of JULIAN,
retreating from the Perfian war, originated
from the ſame caufe. (m)
This precarious ſtate of the public fecurity,
almoſt naturally implies a general want of
good faith. Examples of it are but too
numerous during this unfortunate period,
but which as they may be confidered as in-
fractions, need not to be mentioned. It was
referved however for fuch a ftate of the
Law of Nations, for a People making Trea-
ties, deliberately to bind themſelves by a pre-
vious oath, to break the faith they were fwear-
ing to obſerve. This was fuppoſed to be the
cafe with the Gothic Nations fettled by
THEODOSIUS in Thrace, when they bound
themſelves by treaty to defend that part of
the Empire. (2)
(7) Ammian Marcell. 26. 5.
(m) See Montefquieu's Reflections upon this fort of Law
of Nations. Grand. et Dec. ch. 18.
(2) See the quarrel of FRAVITTA and PRIULF, in
the preſence of the Emperor THEODOSIUS, which againſt
their will diſcovered to him their fyftem of treachery.-
Gibbon. ch. 26.
In
1
220
FROM THE FALL OF ROME
1
In fuch a State alfo, the diftinctions be-
tween municipal Jurifdiction, and the na-
tional power, as it concerned Foreign Go-
venments, could hardly be well underſtood,-
and accordingly we find when MARCOMIR,
a King of the Franks, had broken a treaty
he had made with the Romans; he was not
puniſhed by the order, and at the difcretion
of the Sovereign; (the only mode which
could confiftently be purſued ;) but was
calmly fummoned before the Tribunal of a
Magiſtrate, and convicted and ſentenced, like
a Subject who had broken his allegiance. (0)
The hope of booty being allowed among
the fair cauſes for war; the cuftom of exact-
ing Tributes naturally followed; for in this
fituation of continued and univerfal hoftility,
nations could never be aware of the points
of attack; and when every man armed him-
felf againſt his fellow as a matter of courſe,
it furpaffed (human courage, and) human
forefight, to be always effectually upon their
guard. Much firmer people therefore than
the Romans, might very naturally fall upon
(0) Gibbon, ch. 30.
the
TO THE ELEVENTH CENTURY. 221
the expedient adopted by them and others,
to deliver themſelves from thefe cruel evils.
The eaſe however with which Tributes were
granted, as naturally provoked new demands.
and new barbarities;-Thofe exacted by the
Danes and Normans are well known; and
the cruel avarice of theſe mercilefs Robbers,
(who were only complying with the received
Law of Nations according to them,) has been
pathetically defcribed by various Hiftorians.-
To give particular inftances of their cruelty
after thoſe already cited, would be as un-
neceffary as they are diſguſting; it is fuffi-
cient to obſerve, that in mere predatory ex-
peditions, this ferocious people, who were
only to be curbed by the commanding genius
of CHARLEMAGNE, ſpread themſelves after
his death, over Saxony, and Flanders as far as
Mentz ;-and after ravaging the coafts, pene-
trated by the rivers into France; where they
pillaged and burned. her Captial, and the
fairest of her Towns, as far as the province.
of Dauphiny.-CHARLEMAGNE forefaw and
dreaded their progrefs, and is even faid to
have ſhed tears, when he found them defy-
ing his name, and likely to break down the
force of that order, which he ſeemed born
to
222
FROM THE FALL OF ROME
to eſtabliſh. (p) It would be unneceſſary to
attend their progrefs into Britain where they
made themſelves maſters of the Throne itfelf;
or to deſcribe the extent of their barbarities
and robberies, which could only be got rid
of by means equally deftructive of regularity
and law, a general maffacre of them by the
people they had outraged.
Had theſe horrors been merely the effect
of a burſt of paffion, or the heat of war; or
confidered as a direct infraction of Law;
ſome confolation might be derived to the
lover of good order. But it is his peculiar
unhappineſs to find that they were the mere
effect of a compliance with received maxims,
and a conformity with, what was conceived
to be, no more than duty; for even inde-
pendent of the convulfions produced by the
irruptions of fuch butchers as ALARIE, AT-
TILA and GENSERIE, the iujuftice of execu-
(p) See Velly. Hift. de France 1. & Mallet. Northern
Antiquities, 1, 245. et infr. there is a long and full ac-
count of them in Mezerai, & Guiccardini's Defcript. of
the Netherlands. fub ann. 830, to 890. Even the ftout
William, in times far better regulated, was reduced to the
humiliation of buying off the attacks of the Danes from his
newly acquired kingdom.-Hoveden, p. 451.
*
tions
t
223
TO THE ELEVENTH CENTURY.
tions in cold blood feemed to be reduced to a
fyftem.
Of this nothing is a ftronger proof than
the common mode of proceeding againſt un-
fuccefsful Generals when taken prifoners in
battle. In thoſe unfortunate cafes, their
deaths were regular and certain; and the
horror is encreafed when we confider that the
cuſtom prevailed long after CHRISTIANITY
was introduced, and may be traced through a
ſeries of years fo connected and extenſive,
that we are not able to point out the exact
time when it ceaſed. We have ſeen its re-
ception among the Greeks, and Romans; nor
could it be expected that men leſs enlightened
than they, ſhould exceed them in humanity.
We accordingly find the Law in full force at
various and diſtant periods.-In the year 366,
upon the defeat of the Alemanni, their
captive king was hung on a Gibbet by the
Army of JOVINUS.-In 406, RADAGAISUS
monarch of the Goths reduced by STIL-
LICHO to lay down his arms, after being for
ſome time a priſoner, was fhamefully put to
death. Fifty years afterwards, the great and
juft THEODORIE himſelf, orders for execu-
tion,
224
FROM THE FALL OF ROME
tion, RECHIARIUS the conquered king of
the Suevi; In 486, SYAGRIUS the Roman
Commander in Gaul, was defeated, and
beheaded by CLOVIS; and in 532, the Bur-
gundian SIGISMOND, overcome by the Sons
of that Prince, was together with his wife
and children buried alive in a deep well.
Even the enlightened CHARLEMAGNE, who
lived near three centuries after them, and
whofe genius has been juftly faid to have
gone beyond his age; is found calmly com-
manding four thousand five hundred Saxons
to be beheaded in cool blood, after having
flaughtered the bulk of their nation in vari-
ous battles.
The Laws which could permit fuch deli-
berate executions, very naturally allowed as
an act of mercy alone, what the more hu-
mane morality of modern times, has deferv-
edly driven from its Code. We must not
therefore be ſurpriſed to find perfonal
SLAVERY exifting throughout thoſe Coun-
tries which admitted and brought into prac-
tice theſe maxims of blood; and the greater
the number or the rage of hoftilities, the
more fruitful was the fource of fervitude.
It
TO THE ELEVENTH CENTURY. 225
It was often made the inftrument of po-
litical advantage as well as of private wealth:
After the defeat of CHOSROES by JUSTINIAN;
feventy thouſand captives were led from the
banks of the Cafpian, to form the fettlement
of the Iſle of Cyprus. The policy of CHAR-
LEMAGNE, after an interval of above two
hundred years, was of the fame kind; and
the half-fubdued Soldiers whofe allegiance he
doubted in Saxony, became the faithful means
of his defence in the provinces of Frifeland.
The ftate of a Slave in thoſe times, was
little better than it was under the Greek and
Roman power. (g) The horrid inftitution of
the KPYпTIA was indeed not known; but abſo-
lute power of life and death was claimed by the
Maſter; and the warrior who at one moment
had defied his enemy in the field; followed
him the next, as fubfervient to his will, as
the cattle which equally with himſelf, formed
the eſtate of the Conqueror.
(9) Among the early Germans however, according to
Tacitus, it was better. Melior Conditio apud Germanos
quam Romanos.De Mor. Germ.
VOL. I.
Q
Р
In
226
FROM THE FALL OF ROME
།
In proceſs of time, diftinct claffes of Slaves
came to be inftituted. Thoſe of talents or
perſonal beauty, were referved for the ſervices
of the family; thofe, whofe only qualifica-
tions were health and bodily ftrength, were
chained as it were to the foil, and fold along
with it as the means of its cultivation. They
were confidered indeed as a perfonal as well
as a real property; the English law, in com-
mon with moſt others, dividing them into
Villains regardant, and villains in grofs; the
one fixed to the Soil (adfcripti gleba,) the
other annexed to the perſon of the lord; (r)
and there are inftances of great numbers of
them being tranfported from one ſtate, and
even from one province or kingdom, to
another, (s) as will, or convenience directed.
(r) Littel. Sec. 181. Sir T. Smith's Commonwealth,
3. 10. Spelman's Gloff. voc. Scrvus. "Germanorum in-
ftar erant noftri Villani, a Servis multum diverfi; quidam
erant prædiales; quidam, perfonales,” &c.
(s) Chilperie fent away whole families of Slaves from
his farms near Paris into Spain; they were chained in
waggons, a nuptial prefent on the marriage of his Daughter.
Greg. Tur. L. 6. C. 45.
To
TO THE ELEVENTH CENTURY.
227
<
To preſerve an empire thus proudly ad-
miniſtered, we must not be furpriſed to find
that a difference, even in moral worth, was
made by the Law between the Lord and the
Villain. Hence, the depofition of a flave
againſt his maſter in a Court of Juſtice, was
never received; (t) hence alſo, that humili-
ating diftinction which the Frankish Con-
querors made between the equivalent de-
manded for the death of their relations when
any of them were killed; and that paid for
the death of the miferable Gauls. (u)
(t) L. L. Secti. Steph. Cap. 19. Refp. et Stat. Hung.
p. 179. Edict. Theod. 48. ap. Lendenbrog. 249.
(u) See the Salic and Repuarian Laws with Mon-
teſquieu's reflections; Efp. des Loix, and Obfervat. fur
J'Hift. de Fr. par Mably. L. 1. Ch. 2. Alfo Gloff. de Du
Cange, voce Servus, and Cap. 19 of the Leges Sancti Ste-
phani. Refp. et Stat. Hung. p. 103. It cannot be expected
that in a work like this, our attention can be arreſted to con-
fider at large the condition of flavery in the middle ages; or
if it could, the matter has already been too amply and too
accurately inveſtigated to attempt it anew. It is enough to
touch ſlightly upon the ſubject, in order to fhew that it came
within the Law of Nations of theſe times. The learned
reader need not be told of a whole cloud of Antiq aries
and Critics upon this part of the Cuftoms of Europe.
For the Condition of the Saxons, however, in England,
fee much learning in Dr. Brady's Gen. Pref. to his Hiſtory,
and Sir T. Smith, 3. 10.
Q =
The
ثر
228
FROM THE FALL OF ROME
1
1:
The exiſtence of Slavery, was long pro-
tracted in Europe. We faw it univerfal be-
fore the Chriftian æra; nor could it be ex-
pected that a new religion whoſe eſtabliſh-
ment was accompliſhed under a cruel length
of perfecution, and which looked for fuccefs
to infinuation and conviction alone, fhould
immediately effectuate the reforms which it
came only to recommend.
CHRISTIANITY
however, in conformity with its principles,
claims the merit of having gone fartheft to-
wards the abolition of this debafing Inſtitution.
It is indeed the great, and almoft the only
cauſe of its abolition, in the opinion of GRO-
TIUS, who lays it down that by the old Law
of Nations, the practice was perfectly legiti
mate; (w) an opinion in which he is fully
borne out by the univerfality of the uſage,
both before and for fome time after the æra
of Chrift. (x)
1
(w) De Jur. B. et P. 3. 7. 9.
(x) The chief and moft antient divifion of men in the
Codes of Jurifprudence in Germany, was into two ranks;
the Freemen and the Slaves.
Heineccius Elem. Jur. Germ. L. 1. S. 21.
When
1
TO THE ELEVENTH CENTURY.
229
effect upon
upon this
When however the milder doctrines preach-
ed by him, came really to be well underſtood
and diſſeminated in their genuine purity; the
part of the then received Law,
was viſible and permanent. The profeffed
and affigned reafons for moſt of the charters
of manumiffion, from the time of GREGORY
the Great, to the thirteenth Century, were the
religious and pious confiderations of the fra-
ternity of men, the imitation of the example
of CHRIST, the love of our Maker, and the
hope of redemption. Enfranchiſement was
frequently given upon a death-bed, as the
moſt acceptable fervice that could be offered;
and when the facred character of the prieſt-
hood came to obtain more univerfal venera-
tion; to affume its functions was the imme-
diate paffport to freedom. (y)
(y) The enfranchiſement of Slaves in England arofe
moft particularly from thefe principles of piety: The man-
ner of it has been well deſcribed by Sir Thomas Smith
(Commonwealth, 3. 10.) and Dr. Brady (Gen, Pref. to his
Hift.)
For the manner and motives of enfranchiſement on the
Continent, befides Montefq. Du Cange, &c. fee particularly
Heineccius. Elem Jur. Germ. L. 1. Tit. 2. De Stat. Li-
bertinorum, and the elaborate Note U of Robertfon, Ch. V.
Introd. S. 1.
Q3
Long
230
FROM THE FALL OF ROME'
Long before this however, CHRISTIANITY
had begun to perform its office in foftening
the rough manners of the Barbarians; and
though, as was natural, the favage underſtand-
ing of a Goth, or a Scythian, might not be
able to comprehend, or might perhaps at firſt
deſpiſe the humane duties which it taught;
yet he was infenfibly led to reſpect, and after-
wards to embrace a religion, which evidently
tended to hold out protection to the un-
fortunate. ALARIC in the midſt of the fack
and pillage of the richeſt City in the World,
gave
the ftricteſt orders to reſpect the Churches
of the Apoſtles; and what is more wonderful
at that time, to fpare the lives of the un-
refifting citizens. ALARIC and many of his
Goths, were CHRISTIANS; and in com-
pliance with his commands, (or probably in
the fervour of his own zeal,) one of his Cap-
tains in the moment of laying his hands on
an immenfe hoard of plate, upon hearing that
it was dedicated to the fervice of SAINT
PETER, abſtained from his prey, and was im-
mediately ordered by his Commander to re-
place it in the church.
On a fimilar occafion, and in a moment of
equal licenfe, LUITPRAND, king of the Lom-
I
bards,
TO THE ELEVENTH CENTURY.
231
bards, on the point of plundering the fame
devoted City; liftened to the voice of the
Pope; withdrew his Troops, and performing
his devotions at the fhrine of the Apoftle, re-
ſpectfully made an offering of the enſigns of
his command (≈)
A facrifice much more congenial with the
genius of the new religion, was made by
HERACLIUS. After the defeat of CHOSROES,
fifty thouſand captives were releaſed by that
monarch, confiftent with the fpirit which,
to uſe his own words, made him devote his
life for the falvation of his brethren, to obtain in
a crown of martyrdom, an immortal reward.
The dawning of the CHRISTIAN Law of Na-
tions is alſo to be obſerved in the conduct of
the fame Prince, in his meffages to the Perfian
Tyrant, exhorting him to fpare the blood of
his Subjects and relieve an humane Con-
queror from the pain of deſtroying the faireſt
countries of Afia. (a)
49.
(z) See Gibbon, and the Authorities he quotes, Chs. 31.
(a) Id. Ch. 46.
Q4
Such
232
FROM THE FALL OF ROME
Such among many, were the good effects
of CHRISTIANITY upon the Laws of War
during theſe times-Not that it is meant to be
afferted, that it was the fole cauſe of the hu-
manity which is ſometimes diſcoverable in this
dark period; fince among the moſt pagan
and ferocious nations, examples often appear
of a magnanimity and compaffion, which
Thine forth and dazzle us amid the furround-
ing gloom. Of this, the accounts of the
North American Savages, prefent us with
many inftances; and of this alfo, we meet
with ftrong proofs among the favages whofe
hiſtory we are examining. The Laws
of ſeveral of their ftates, made exprefs pro-
vifions to enforce the rights of hoſpitality, (b)
}
(b) By a Law of the Burgundians, tit. 38. S. 1. whoever
refuſed Bed or Fire to a Stranger, was puniſhed with a fine
of three fhillings. By another among the Capitularies,
fome centuries afterwards, any one who fhut his houfe
againſt another going a Journey, was fined ſixty fhillings.
L. 6. S. 82. and among the Slavi it was even a maxim,
"Quo nocte furatus fueris, Cras appone hofpitibus." See
Note F. F. Robert, Ch. 5. Introd. A Law of the Wifi-
goths enjoins not only the good treatment of Merchants and
Strangers, but that they fhall be tried by their own Laws.
Fuero Jufgo. L. 2. P. 436.
and
TO THE ELEVENTH CENTURY.
233
and various hiſtories might be related to fhew
how thoſe rights were refpected.
Eminent among the reft is the ftory of
ALBOIN.
There had been old war between the Gepida
and the Lombards, and ALBOIN, Prince of the
latter, after overthrowing the Gepida in
battle, pierced with his own hand, the Son of
TURISUND their king.
It was a cuſtom it ſeems among the Lom-
bards, to reward valour with a feat at the
royal table; but the fon of the King could not
fit even with his father, until he had been in-
vefted with arms by fome foreign Prince.-
ALBOIN ambitious of this honour, did not
heſitate with forty Companions, to viſit the
court of TURISUND, and was thus in the
power of a hoſtile and injured Nation. The
generous Monarch however, though he could
not prevent his grief from burſting forth at
the fight of him who had juſt ſlain his ſon;
reſpected the rights of a ſtranger, protected
him from the vengeance of his nation, and
fent
234
FROM THE FALL OF ROME
fent him home inveſted with the bloody arms
of his child. (c)
But though the virtues of hofpitality found
eminent place in the conduct of many In-
dividuals; yet ftranger Nations in theſe times
had little reaſon to be happy under the In-
ftitutions which governed their intercourſe.
The eſtabliſhment of the FEUDAL SYSTEM,
introduced all the vigour and harſhneſs of mi-
litary watchfulneſs; and men in the boſom
of their own Society, feemed to keep guard
as if in a camp. If a perfon therefore re-
moved from one ſtate to another, though it
was in ſearch of fettlement, the fuperior
Lord might ſeize him as his Slave. The cruel
rights of the Inhabitants of the Sea Coafts
againſt thoſe who ſuffered fhipwreck are well
known; and among the Welſh, a madman, a
(c) Gibb. Ch. 45. The Paradife of Odin was en-
joyed even upon Earth by this fierce Prince, who, hav-
ing flain the only furviving fon of Turifund, faſhioned
his ſkull into a Cup, which ferved him long after at his
feafts. Ib.
leper,
TO THE ELEVENTH CENTURY.
235
leper, and a ſtranger, might be killed with
impunity. (d)
If a man, even of the ſame ſtate, paſt from
one province of it to another, he was bound
within a year and a day to acknowledge him-
felf the Vaffal of the Lord of the manor where
he fettled (e): The Jus Albinatus, is hardly yet
even worn out on the continent, and beſpeaks
forcibly the inhumanity of the early Law of
Nations.
(d) Leges Hoel Dad. quoted by the Author of Ob
fervations on the Statutes, chiefly the more Antient,
p. 22.
(e) So jealous indeed were our anceſtors of encouraging
an intercourſe with Strangers, that by a Law of the Con-
queror, no man was allowed to receive a perſon unknown
to him into his houſe for more than three days, unleſs he had
been previouſly recommended to him.
Leg. Guil. Conq. apud Wilk. 227.
This was but fimilar to the ſpirit of the Saxon Laws of
H. Lotharius, Eadricus, and Edward, which enjoined that
the hoft fhould be anfwerable for the delinquency of the
ftranger, in cafe he entertained him in his own houſe and
nouriſhed him with his own food for three nights together.
Wilkins, Leg. Sax. 9. 203. De Hofpitibus.
So alfo L. L. Withrodi; Si peregrinus vel advena devius
vagetur, et tunc nec vociferaverit, nec cornu infonuerit,
pro fure comprobandus eft, vel occidendus, vel redimen-
dus. Id, 12.
Such
236
FROM THE FALL OF ROME
Such then was the fituation of Europe from
the fall of the Roman Empire, till about the
opening of the eleventh century; and we
ſhall probably not be able to diſcover a period
of its hiſtory, in which there is to be found,
greater licence, lefs order, and confequently
lefs happineſs. In fuch a fituation therefore
we cannot expect that any very clear ideas of
the rights of mankind, either as Individuals
or as Nations, were entertained. Sovereigns
found difficulty in conceiving, and more in
enforcing a Set of Laws, which ſhould be able
to give peace to the interiour of their own
ftates; and it was not till after the eleventh
century, or rather till after the diſcovery of
the Pandects of JUSTINIAN, that the munici-
pal Laws of the kingdoms of Europe came to
affume any great regularity of ſhape. We may
ſuppoſe then how little probable it was, that
there could be any thing like a Code under the
title of the Law of Nations. To fuch a Law
indeed men never ſeem to have appealed;
CHRISTIANITY, it is true, obfcured as it
by the interpretation which the Popes chofe
to give of it, ſometimes interfered with effect;
but with reſpect to maxims of juftice, or
a common ſet of Laws for the government of
States
was,
TO THE ELEVENTH CENTURY.
237
States; they feem not merely to have been.
ſhapeleſs, but abfolutely unknown.
An enquiry might here very naturally be
made into the nature of the TREATIES which
were entered into during this period; ALLI-
ANCES and poſitive CONVENTIONS, often fup-
plying the place of general maxims of juſtice,
and forcing men to the obfervance of an equity
which the rudeneſs of their manners prevents
them from perceiving by nature.
It is thus,
as we before hinted, (f) that Barbarous and
Infidel Nations have been infenfibly intro-
duced into more poliſhed Claffes, and led to
the cultivation of more humane Laws. But
the World was fo particularly fituated, and
the darkneſs fo univerfal during theſe times;
that while the barbarous nations were allowed
abſolutely to wanton in every indulgence to
which the poffeffion of the moſt favage li-
berty could prompt them ; there was no
people within their ſphere, to ſet before them
a better example, or incorporate them by
TREATIES, with a better order of ſociety.
(f) Chap. V. ad fin.
In
238
FROM THE FALL OF ROME
1
In common Wars, where the conquered
people are allowed fome indulgence, and re-
ſpect is paid to their manners and arts; if
they excel their conquerors in thoſe points,
(which has often been the cafe,) they have
fometimes been the means of poliſhing even
thoſe who enflave them, the ftubborn fupe-
riority of the latter condefcending to adopt
their learning or refinements; and thus it was
between Greece and Rome. (g) But the de-
ftruction of the Roman World, was fo fudden,
and fo total; and the object, as we have
- obferved, was fo evidently Extermination;
that the Barbarians preferved the manners of
the defert, amidſt the moft fplendid materials,
for civilization, for ſcience, and for elegance.
When theſe materials were deftroyed, as
they foon were, no other opportunities for
recalling them prefented themſelves from
foreign quarters. The Weft was unknown:
the South was fcarcely believed to be in-
habited beyond certain latitudes; and it was
from the Eaft and from the North, that the
(g) The Hiftory of the Tartars and Chineſe prefents us
alſo with an eminent example of this.
น
deluge
TO THE ELEVENTH CENTURY.
239
deluge came. If any
nation could have im-
proved them at all by treaty and alliance, at
this time, it ſeems to have been the Chineſe;
the doctrines of CONFUCIUS having been
cheriſhed among them long before CHRIST.
But that extraordinary Empire was removed
to a diſtance far too great from the fphere of
their intercourſe, to be of the ſmalleſt fervice
to them; and poffibly, if it could have heard
of what was then paffing in Europe, it might
have confidered it as our prefent nations
confider the revolutions of Wydah, or the
Caffres.
EUROPE was therefore left abfolutely to
itſelf for improvement; and under fuch cir-
cumſtances, we cannot be furpriſed that its
progrefs was flow. During the middle ages
there is confequently a great dearth of diplo-
matic knowledge; and the Treaties of thofe
times, afford us abfolutely nothing to obſerve
upon, as far at leaſt as they relate to the Law
of Nations.-What they do prefent, however,
mark them as nations actuated by one com-
mon ſpirit; and though they are almoſt all
ecclefiaftical, and relate chiefly to the foundation
of
A
240
FROM THE FALL OF ROME, &c.
of Convents; the building of Churches; and
the grant of immunities to the Priesthood; (b)
yet that alone diſtinguiſhes them from the
reft of the World, under the forms of a
characteriſtic RELIGION. (i)
(b) Vide the Corps diplomatic univerfel par Dumont-
the Cordex Diplomaticus of Leibnitz-the anonymous
Recuil des Traités, & Mabilion de re diplomatica-paffim
during theſe ages.
(i) The forms alfo in which theſe Treaties run, prove
this very strongly.
The name of Chrift, and of the Holy Trinity, was
invoked with great Solemnity; and this form, which con-
tinues to this day among Chriſtian Nations, began at leaſt
as early as the time of Charlemagne.
See Du Mont. I. I. to 6.
CHAP.
HISTORY OF THE LAW IN EUROPE, &c. 241
CHAP. IX.
THE HISTORY OF THE LAW OF NATIONS IN EUROPE,
FROM THE ELEVENTH TO THE FIFTEENTH CEN-
TURY.
IN the laft chapter we obferved that bar-
barity and diforder continued to overwhelm
Europe till towards the opening of the
eleventh century: we muſt not however
fuppofe that the ferocity of manners and
irregularity of principle, which have been
recorded, perifhed all at once after that
period. Changes in theſe points are for the
moſt part effected by the flow lapfe of time;
for while the whole external face of a coun-
try may be altered in a few months by labour
and induſtry; fuch is the fixed nature of
habit and character, that it requires a long
courfe of years to make them unbend, and
many a generation wholly to deftroy them.
The picture therefore which we had of the
cuſtoms of nations, in the preceding chapter,
continues the fame in its out-lines and greater
features, long after the commencement of
VOL. I.
R
the
A
242 HISTORY OF THE LAW IN EUROPE,
the period before us; and though by de-
grees its tints grow fainter and fainter, till at
laſt they are loft in one far more agreeable ;
they are ſtill to be traced in full ftrength
through a long line of years, and feveral
centuries pafs away before they are entirely
expunged. Previous therefore to the ample
confideration which we mean to give of the
particular circumftances which bore upon, and
contributed to alter the law, it will be more
perfpicuous if we purfue, in this place once
for all, the account of fuch events as juſtify
theſe obſervations.
It is one of the moft painful tafks of hif
tory to be obliged to record the facts which
difgrace, as well as thofe which ennoble
mankind, and in examining the cuftoms
which prevailed during this period, our hu-
manity will be but too often ſhocked. Though
frequently more regular, they were fome-
times not lefs barbarous than they were
during the ages of which we have juft been
treating. They muſt however be related, as
without them, the account of the times,
though it might gain in ſoftneſs, would lofe
in
FROM THE XIth TO THE XVth CENTURY. 243
in accuracy and truth, the moſt eſſential
points of an hiſtorical enquiry.
Of all the nations which at this time pre-
tended to the little civilization that was
known, the Normans feem to have taken the
lead in the diſplay of cruelty and infolence,
as well as of valour. In England they are
deſcribed by the Monks, as Devils rather
than as men, and from their delighting in
blood more than other nations, were fuppofed
to be let looſe by the Almighty as the mini-
fters of his vengeance. (a) If the facts re-
corded of them are true, they feem indeed
to juſtify the conclufion. They are faid to
have put their prifoners to the moft unheard
of tortures, in order to difcover treaſures that
were fuppofed to be concealed; they fuf
pended men over fires by the head, the feet,
and the thumbs; they cruſhed their brains
with tight ligatures, and threw them into
dungeons ſwarming with ferpents. (b) When
they turned their eyes on the ſofter fex, left
deſtitute of protection by the flaughter of
(a) H. Huntingdon, p. 212.
(b) Chron. Sax. p. 238.
R 2
their
Į
244 HISTORY OF THE LAW IN EUROPE,
their kindred, no law or fentiment of gene-
rofity could defend them from their brutality;
the Cloiſter alone afforded them fecurity for
their chaſtity; a proof that the conquerors
proceeded on a fort of ſyſtem, and that their
violence was the effect of received cuftoms
which knew what was to be refpected, not
of the mere heat of battle which refpects
nothing. There is a remarkable confirmation
of this in the cafe of MATILDA of Scotland,
who, though a foreign and neutral Princefs,
at that time in England for her education,
was obliged to affume the veil under William
the Firſt, and was married afterwards to his
youngeſt fon. The marriage of a Nun being
unlawful, and the clergy examining her upon
the point, fhe affigned the defence of her
chaſtity as the fole motive for her profeffion :
The plea was allowed to be a good one from
the known and acknowledged cuſtoms of the
Normans, and was adopted by many others
in the fame fituation and with the fame fuc-
cefs. (c) Such was the conduct of a people
who ftigmatized their victims with the name
of barbarians, (d) an appellation in which,
(c) Eadmer. Hift. L. 3.
(d) William of Poitou. p. 202.
5
added
FROM THE XIth TO THE XVth CENTURY. 245
added to the rights they affumed upon it,
they ſeem to have imitated the infolent fero-
city of the Grecian law of nations, mentioned
in a former chapter. (e)
The barbarity of the Scotch customs of war
appears equal to the Norman, and the general
ravage of a Scottiſh invafion, more particu-
larly that of DAVID the Firſt, may be com-
pared to Scythian cruelties; the fick and
aged were murdered in their beds, infants at
the breaft, and priefts at the altar. David
however was famed for humanity, and the
only excuſe for him is, that the received cuf-
toms of the troops he commanded, made it
uſeleſs for him to forbid what he could not pre-
vent. (f)
In Italy, which claims to have been the
firſt to emerge from the barbariſm which
defolated Europe, cruelties not lefs fhocking
were often exerciſed. At the cloſe of the
twelfth century, MARCUALDUS, Senefchal
of the Empire, and pretender to the regency
(e) See chapter vi.
(ƒ) Lyttelt. Hen. 11. 1. 183,
R 3
of
246 HISTORY OF THE LAW IN EUROPE,
*
of Sicily, invaded that Ifland: He was fo far
regular as to wait the denial of his demand,
before he declared war. When it commenced
however, he burſt like a ftorm upon the
unfortunate people; he buried moſt of his
priſoners alive; he burned the Ecclefiaftics;
and thoſe whom he treated with the greateſt
lenity he threw into the fea. (g) In 1264,
MAINFROY, the natural fon of Frederick II.
making war upon the pope in Tufcany,
puniſhed the prelates who fell into his hands
by mutilation and death. (b) On the other
fide his rival and conqueror CHARLES of
Anjou referved numbers of the priſoners
whom he took at the battle of Beneventum
for his entry into Naples, where they were
put to death like common criminals; (i) in
revenge for which, and other cruelties,
twenty years afterwards, two hundred gentle-
men taken by the Sicilians in a naval battle,
were beheaded in cool blood by the famous
admiral LORIA. (k)
(g) Ep. 157. ap geft. Innocent III.
(b) Burigny Hift. de Sicil. 2. 145.
(i) Id. 21. 160.
(k) Id. 2. 208.
A milder
f
I
FROM THE XIth TO THE XVth CENTURY. 247
A milder puniſhment on that occafion was
experienced by the common foldiers, whe
were fent to the gallies, and who as a mark
of infamy were firſt condemned to have their
hair cut off. (1) It is remarkable that the
lofs of hair fhould have continued thus long
in Europe to be a fign of difgrace. Under
the Merovignian race of kings in France, it
was the fame as the lofs of the crown; and
amid the frequent revolutions which that
family underwent, every dethroned prince
was regularly fhaven and thrown into a con-
vent, after which it was ſuppoſed that he
could not pretend to public affairs. The
pride of long hair was extremely antient
among the northern nations, and is to be
traced far back among the Scandinavians. (m)
To endeavour to account for it, any more
(1) Burigny Hift. de Sicil. 2. 207.
(m) See the ftory of the young men of Jomburg, put
to death by Thorchill. The feventh of them, fays the
record, had long fair hair, as fine as filk, which floated in
curls and ringlets on his fhoulders,--being asked what he
thought of death, I receive it willingly replied he; I only
beg of you one favour, not to let my hair be touched by
any one of lower degree than yourſelf, nor be ſtained with
my blood.-Mallet's North. Antiq. 1. 205.
R 4
than
248 HISTORY OF THE LAW IN EUROPE,
than many other human prejudices, would
probably be vain; it is fufficient to have
remarked the fact..
Perhaps indeed it may be denied that theſe
and a number of other examples were in
conformity with the received laws of war,
and they may be fuppofed rather to have
arifen from the accidental burfts of violence
in particular men. Their univerfality how-
ever, and, what is worfe, their duration all
over Europe, prove them to have been the
confequence of fettled cuſtoms; and the cuf
tom of nations, as has often been obferved
in the courſe of this work, is the only law
which can govern them, when particular
conventions have not been agreed upon.
Numbers of the cafes of barbarity which
preſent themſelves, are befides fo regular and
uniform in the circumftances of their ſeverity,
that they muſt have been founded on general
maxims. There was a fixed object propofed
in them, and they were the means adopted
to obtain it.
Among theſe might be reckoned the bar-
barous military puniſhment of mutilation;
inftances
FROM THE XIth TO THE XVth CENTURY. 249
inftances of which are perpetual throughout
the hiftories of Europe. They are matters.
of horror, but they must be related, and we
may then judge whether they can be deemed
mere acts of diſorder.
In the tenth century, THEOBALD duke of
Spoletto, who is defcribed by the hiſtorian as
not undeſerving the title of hero, having con-
demned his captives to the moſt odious of all
mutilations, granted them mercy at the
prayers of a woman.
a woman. Being aſked however
what puniſhment her huſband deſerved ſhould
he be again taken in arms, her anfwer marks
the ſpirit of the times. "He has
eyes and a
"nofe, faid the, hands and feet, thefe are
"his own, and theſe he may deſerve to for-
"feit by his perfonal offences." (12) The
maxim continued long afterwards in Europe.
Not to go into our own ftory beyond the
time of William the Conqueror, whofe feveri-
ties this way are well known; his fon Ru-
FUS took vengeance upon the Welsh in the
(2) Luitprand Hift. L. 4. ch. 4. I have tranfcribed
Gibbon's tranflation. See the whole of that curious story.
Dec. & Fall. 10, 254.
year
250 HISTORY OF THE LAW IN EUROPE,
*
year 1098 by cutting off their feet and
hands: (0) In 1107 Robert duke of Nor-
mandy loft his eyes for endeavouring to break
priſon to which the laws of war had con-
demned him. (p) In 1136 Magnus king of
Norway was emafculated by Eric of Den-
mark; (g) and in 1190 the Suabian Emperor
Barbaroffa, delivered his captives at Milan to
the knife of the executioner, or fhot them
from military engines. In the next century
Marcualdus puniſhed the Sicilian nobles with
different mutilation; and fixty years after-
wards Mainfroy, as has been obferved, made
war on the clergy in the fame manner.
The barbarous treatment of Roger II. by
the Emperor Henry VI. may be attributed to
motives of policy, rather than the received cuf-
toms of war; nevertheleſs we can have little
idea of the regularity of thofe times, when even
with theſe motives, a king conquered by
another in open war, was emafculated, and de-
(0) Cod. Leg. Vet. Spelm. ap. Wilk, p. 283.
(p) Mat. Par. 60.
(2) Mod. Un. Hift. 28. 461.
livered
FROM THE XIth TO THE XVth CENTURY. 251
livered over to perpetual impriſonment, in
order to cut off all hope of pofterity. (r)
At the fiege of Liſbon in 1370, it was the
cuſtom of the Spaniards fays Froiffart, when
they took a priſoner, to tear out his eyes,
and cut off his feet and hands, and in that
condition to fend him back with a meſſage
to his countrymen, threatening them all with
the fame fate. (s) Laftly it is faid to have
been the refolution of the French before the
battle of Agincourt in 1415, to cut off the
three fingers of the right hand of every
Engliſh archer who fhould fall into their
power; a deſign of which Henry well knew
how to take his advantage, in his fpeech to
the foldiers on that memorable day. (t)
Shocking as this mode of military venge-
ance appears, we probably are not to attribute
(r) Ut fpem omnem ei fucceffionis Henricus adimeret,
et de jure hæreditatis futuræ pofteris litigandi furriperet
caufam, genitales illi partes defecans, Eunuchum fecit, et
carceri ad mortem ufque addixit.-Fazellus. de reb. Sicu-
lis. 435, 39.
(s) Froiffart B. 3. ch. 28.
(t) Villaret Hift. de Fr. 3. 172.
it
252 HISTORY OF THE LAW IN EUROPE,
1
it altogether to the ferocity of the times, and
certainly not to the ſudden paffion of indi-
viduals. In all probability it took its rife
from deliberate views of policy. In an age
when war was the fole bufinefs, and the
power of doing active mifchief was therefore
confidered as the higheft endowment, the
value of the members of the body was
heightened in proportion; and as the theory of
puniſhment ſpeculates chiefly on thofe things
on which it beft can take effect, the forfeiture
of the limbs came thus to be a common
penalty even under municipal laws. We
cannot therefore wonder if under the law of
nations, where fo much muft always be left
to the difcretion of the conqueror, the fame
fpirit fhould appear. Accordingly, it ſeems
to have governed both the warriour and the
legiflator, and was found in the camp as well
as in the hall of juſtice.
Another ftrong mark of defalcation of
proper principles, rather than of mere bloodi-
neſs of difpofition, appears in the frequent
ufe of poifon, which we find during this
period. If the death of enemies was the
chief
FROM THE XÍth TO THE XVth CENTURY. 253
chief object in battle, it was of little confe-
quence it was fuppofed, how it ſhould be
accompliſhed. Hence the uſe of poiſoned
arms, and the ſtill more ſhocking expedient,
fometimes fallen upon, of poiſoning the
wells of a country or town through which
foldiers were to march, or which they befieged,
was at leaſt cuſtomary, if it was not abſo-
lutely legitimate. The death of Cœur de
Lion was owing folely to the poifon of the
arrow which wounded him; (u) and fo far
down as the year 1563 we find an inſtance
of the fame kind in France; Ambrofe Earl
of Warwick having died of a wound which
he received in the leg, at the defence of New-
haven, by a poifoned bullet. (v) The latter
horrid practice, (not to ftop here at the fup-
pofed manner in which the Greeks got rid of
the Crufaders,) is to be found at leaft as far
down as the fiege of Bourges in 1412, where
the French are faid to have corrupted the
(z) Mat. Par. 195.
(v) Birch. Mem. of Q. Eliz. 1. 6.
fountains
254 HISTORY OF THE LAW IN EUROPE,
fountains in the fuburbs, the better to cut off
the beſiegers. (x)
A priſoner in thefe early ages being fup-
pofed to be perpetually at the mercy of his
conqueror, even long after the battle in which
he was taken; it was not confidered as unfair
to look upon him as an hoſtage for what
might be done by the enemy, or to threaten
and to exerciſe ſeverity againſt him, in order
to extort what otherwiſe perhaps might not
have been eaſily obtained.
Upon this principle it was, that HENRY
the Fifth proceeded in feveral of his fieges in
France. At Rouen in 1418 gibbets were
erected all round the city, and as a mark of
what the inhabitants might expect if they
perfifted to defend themſelves, the priſoners
were hung up upon them in fight of their
friends. The fame conduct was purſued at
Monteran in 1420.-Yet Henry after the
capture of Rouen, had ftipulated that a large
body of citizens who had been expelled the
(x). Monftrelet. Chron. de Fr. fub. an. 1412.
city
FROM THE XIth TO THE XVth CENTURY. 255
city in order to fave proviſions, ſhould be
reftored and fed for a twelvemonth at the
expence of the inhabitants; (y) and from this
and other inftances, (particularly that famous
proof of his knowledge of what good order
required of him which has immortalized his
youth,) it should feem that it was not fo
much his own barbarity, as the cuſtom of
the times which led him into theſe cruelties.
Upon this principle alfo it was, that
Beatrice fifter of Conftance queen of Arragon,
was delivered from a long captivity in which
ſhe had been held by Charles of Anjou the
conqueror of Naples. The Arragonians hav-
ing defeated and taken in a naval battle the
prince of Salerno, the queen diſpatched a
veffel with him into the port of Naples,
where the captain calling forth the princeſs
his confort, pointed out her unfortunate huf-
band on the deck, an executioner at his fide,
and menaced him with inftant death if
Beatrice was not given up. This was done
upon the ſpot, (2) and he himſelf was after-
(y) Monſtrelet. Chron. de Fr. v. I. ch. 201, 225.
(z) Burigny. Hift. de Sicile 2. 208.
wards
256 HISTORY OF THE LAW IN EUROPE,
}
wards detained to be once more the inftru-
ment of the ſame kind of policy. His father
meditating the fiege of Meffina which was the
place of his captivity, the Meffenians threat-
ened again to put him to death if the king
fhould dare to ſet foot in Sicily. (a)
The hiftory of this houfe of Anjou is fer-
tile in events of confequence to the law of
nations. Far before the reft is the cafe of the
unhappy CONRADDIN. This unfortunate
young prince, if lineal fucceffion could have
been allowed to take its courſe againſt the
infallible will of the fovereign of Rome, was
the undoubted heir to the crown of Sicily. (b)
But that mighty power having through
hatred to his family beſtowed the Kingdom,
whenever he ſhould conquer it, upon the
Count of Provence, and the battle of Beneven-
(a) Burigny Hift. de Sicile 2. 208. It was a policy of
the fame kind which was fuppofed to have faved Paris from
the duke of Brunfwick in 1792, when the unfortunate
Louis XVI. was detained prifoner by his ſubjects.
(b) He was the grandson of the famous Frederic II.
Emperor of Germany and king of Sicily, whofe quarrels
with the Pope are fo celebrated in hiſtory.
tum
um
FROM THE XIth TO THE XVth CENTURY. 257
tum having decided it in his favour, the
Count fucceeded quietly to the enjoyment
of his conqueft. After a few years however,
the young Conraddin with a ſpirit of ad-
venture far beyond his age, feconded by his
friend and coufin Frederic of Auſtria, as
young as himſelf, prepared to affert the
rights of his houſe. They were both of them
met, defeated and taken by the inexorable
Charles, whofe treatment of them on this
occafion forms a cafe in the law before us,
about which there has often fince, been
much difference of opinion. Unwilling to
incur the character of a tyrant who could
himſelf bear all the guilt of blood and mur-
der, he refolved to adopt a conduct infinitely
more prejudicial to the rights of mankind;
fince men may guard againſt what all allow
to be forbidden, but can never eſcape the
murder which is fanctioned by law. Affem-
bling therefore the judges, he brought his
priſoners before them, and after having heard
with care (to uſe the expreffion of the hif-
torian,) "all the reafons that could be drawn
66
from law, and the jus publicum," they were
found guilty of treafon, and condemned to
VOL I.
S
fuffer
1
258 HISTORY OF THE LAW IN EUROPE,
•
fuffer death on the fcaffold. (c) They were
accordingly led into the market place, and
after having been reproached with their
crimes, and forced with a refinement of
cruelty to affift in the chapel at their own
funeral fervice, they patiently fubmitted to
the axe of the executioner.
1
When we confider in this remarkable cafe,
that neither CONRADDIN nor his coufin
FREDERIC were at all
at all dependent upon
Charles; that allowing him to have been the
lawful king, they owed him no allegiance,
that they came in arms as open enemies, and
made war upon him according to the forms
of war; we ſhall find difficulty in difcovering
by what maxim of juftice they could be con-
demned. Carrying the rights of war to their
utmoſt extent, Charles after the battle might
have kept them in perpetual impriſonment,
(c) An antient French hiſtorian gives the following ac-
count of it. "Illuec fit affambler plufeurs Seigneurs de
«loys, et autres fages hommes, & jugierent que par droit
❝ il devoit avoir les chiées coupés, comme cil qui eftoient
"coupable de la malveftie et defloyeaité efgenée."-
Guillaume de Nangis. Ann. de St. Louis. 267. See alfa
Velly Hift. de Fr. & Giannone. 19. 2.
ex
FROM THE XIth TO THE XVth CENTURY. 259
1
or with ftrong hand might have fwept them
from the world, as enemies with whom he
never could be fafe. That he could condemn
them according to the forms of à judicial
procefs, can only be attributed to the pecu-
liar irregularity of the age. At the ſame time
it deſerves to be marked as a fact well worthy
of notice, that while every thing feemed to
bend before the fortune of the houfe of An-
jou, a man was found adventurous enough
to queſtion the validity of the fentence, and to
write a book to prove that it was contrary to
the law of nations. This was Succaria, a
civilian of thofe days, (d) and his book,
whether well or ill executed, preſents us I
believe with the firſt inftance of the law of
nations confidered of importance enough to
be treated as a ſcience. The cafe however
continued on the records of the world, and
ftrefs was laid upon it three hundred years
afterwards, by thoſe who condemned the un-
fortunate queen of Scots. (e)
More than a century after this, (1384) the
fame family furniſhes us with another ex-
(d) Burigny Hift. de Sicile, 2. 174.
(e) Camden's Eliz. p. 376.
S 2
ample
260 HISTORY OF THE LAW IN EUROPE,
ample of the fame fort of violence. Jane, the
defcendant of Charles, having adopted the
duke of Anjou, brother to Charles the Sixth
of France as her heir; the duke of Durazzo,
who was next in fucceffion, made war upon
her, and became mafter of her perfon. As
her own right to the throne, had never been
doubted, there was not a pretext to put her
to death; but Jane in the courſe of her reign,
had been guilty of infidelity and murder, and
the laws of nations of thofe times, which
permitted every irregularity, feemed even to
command, what certainly was but retribution.
However facred therefore the inviolability of
crowned heads may be confidered by more
regular maxims; the maxims then in exiſtence
called loudly for her puniſhment, and fhe
was ftrangled in confequence, by order of
her conqueror, as ſhe herſelf had ſtrangled
her firſt huſband Andrew of Hungary fome
years before. (ƒ)
The deliberate execution of officers after
having behaved gallantly at their poſts though
forced to fubmit to fuperiour power, is ftill
(ƒ) Paſquier recher. de la Fr. 6. 26.-Giannone 23. 5.
lefs
•
FROM THE XIth TO THE XVth CENTURY. 261
lefs to be defended.
We obſerved inftances
of this in all the periods we have yet touched
upon, and it continues during that imme-
diately before us. The whole of the garriſon
before which RICHARD the Firft loft his life
were immediately put to death by that prince,
except the foldier by whofe arrow he fell.
But though pardoned by the king, in whom
the feeds of true magnanimity feem only to
have been ſtifled by the barbarity of the
times, he was but referved for a feverer
vengeance; being unmercifully flayed alive
by Markadeus fecond in command. (g)
The well known fate of the brave Sir
William Wallace in 1305 is a difgrace in-
delible to the Engliſh name and the character
of the age.
In 1414 Beurnonville commander of Soif-
fons for the duke of Burgund, being forced
to yield the town after a vigorous defence,
was taken deliberately to Paris, and led to
execution like a criminal, in revenge for the
death of Hector de Bourbon, killed during
(g) Hoveden, p. 791.
S 3
the
262 HISTORY OF THE LAW IN EUROPE,
the fiege. (b) I pafs over the condemnation
of the famous Joan d'Arc, fince (however it
may fully the reputation of the duke of Bed-
ford for not faving her life,) the avowed
motive for her death, was her being an en-
chantrefs and an heretic, and therefore it
cannot in any fort be brought under the cuf
toms of war. (i) Too many examples how-
ever may be adduced in fupport of the point
in queſtion, and it is remarkable that they
occur most frequently in the very century
from which a celebrated hiftorian looks back
upon the progrefs of mankind from the bar-
barous ages, and pronounces it to be im-
menfe ; they occur alfo under characters
which we are accuſtomed to regard with fa-
vour and refpect.
At the fiege of Rouen, mentioned before,
HENRY the Fifth referved by an exprefs
article of the capitulation, a certain number of
(b) Monftrelet ad an. 1414. v. 1. ch. 121. His head
was ſtuck on a lance, and his body hung up by the arm-
pits.
(i) See a long and able but partial account of her pro-
cefs in Villaret, 3. 432. et infr. & v. 4. ad init.
men
FROM THE XIth TO THE XVth CENTURY, 263
men on whom he ſhould be allowed to exer-
cife his rights of vengeance.
In 1421 at the fiege of Meaux, Vaurus the
Governor, in order to inſpire an irreconcile-
able hatred into his foldiers againſt the
Engliſh, fent his prifoners regularly to an
Elm, (which on this account was called the
Elm of Vaurus,) where they were hanged
without mercy.
"Let them be carried to
. my Elm," were the words of the inexora-
ble fentence. The Engliſh of courſe retaliated,
and with comparative mildneſs, contented
themſelves on the fall of the place, with
putting to death fix of the principal officers,
at the head of whom was Vaurus him-
ſelf. (k)
In 1431 the Commandant of Guerron, a
garriſon in Champagne, being preffed to ex-
tremity by Luxemburg, a French general,
could only fave the majority of his foldiers.
by yielding up every fourth and fixth man to
the mercy of the conqueror.
(k) Chron. de Monſtrel. ad an. 1421,
S.4
The
}
264 HISTORY OF THE LAW IN EUROPE,
The garrifon paffed in view before Lux-
emburg, the victims were chofen, and exe-
cuted on the ſpot by one of their own body,
who was forced to ferve this bloody office. (/)
In 1476 I find a ftrange law of war which
in theſe days would be held equally infamous.
The duke of Burgundy having befieged
Nanci; efforts were made by feveral gentle-
men to throw themfelves into the place. One
of them being taken in the attempt, the duke
ordered him to be immediately hanged, Say-
ing that it was contrary to all the rights of war,
when a general had begun the fiege of a town,
and the fire of the artillery had commenced, for
any one to attempt to enter the fortress in order
to defend it. Commines who gives the ac-
count adds that this was really the cuſtom in
Spain and in Italy, (m) In 1479, Maximilian
archduke of Auſtria, being arreſted three days
in his progreſs by Raimonet commander of
the little caſtle of Malauny near Terouenne,
that governour was inftantly hanged on the
ſurrender of the caſtle. (2) Near three hun-
(1) Monftrelet fub. an. 1431.
(m) Commines, L. 5. ch. 6.
(n) Contin, of Monftrel. p. 71.
dred
FROM THE XIth TO THE XVth CENTURY. 265
dred years from the time of RICHARD I.
when fuch enormities were most frequent,
had thus produced no amendment. The
latter days of Maximilian come within the
period to which the maxims and politics of
later times are uſually traced; but all through
the century in which his name ſo often ap-
pears, the cuſtoms of war are peculiarly
fhocking.
The cruel and mutual ravages of the French
and Engliſh are ſaid to have been fuch, that
neither man nor woman was to be ſeen in the
whole country of Caux, except the garrifons
of fortified places. (0) Nor can there proba-
bly be a more feeling deſcription of the mife-
ries of war in thefe barbarous times than the
following tranflation of Speed from Polydore
Virgil. "While the English and French
(quoth he) contend for Dominion, Sove-
e raignty, and life itſelfe, mens goods in France
66
were violently taken by the licence of warre,
"Churches ſpoiled, men every where mur-
"thered, or wounded, others put to death, or
"tortured; Matrons raviſhed, Maydes for-
cibly drawne from out their parents armes
(0) Chroniques de France. 124.
46
to
266 HISTORY OF THE LAW IN EUROPE,
"to bee deflowered, Townes daily taken, daily
66
fpoiled, daily defaced, the riches of the
"inhabitants carried whither the Conquerours
"thinke good; houfes and villages round
"about fet on fire: no kind of cruelty is left
unpractiſed upon the miferable French.
"Neither was England her-felf void of theſe
miſchiefes, who every day heard the newes
"of her valiant Childrens funerals, flaine in
perpetual ſkirmishes and bickerings, her
generall wealth continually ebd, and wained,
"ſo that the evils feemed almoſt equall, and
"the whole Wefterne world echoed the
groanes and fighes of either Nations quarrels,
being the common argument of ſpeech and
compaffion throughout Christendom." (p)
C6
ર
..
66
Savage however as this picture has repre-
fented the English in their mode of making
war, we have authority for believing that
they exceeded all other nations in the regu-
larity of their proceedings, at leaſt according
to the ideas of the age. The devaftations.
that have been deſcribed were therefore com-
mon all over Europe, and miferable indeed.
(p) Speed. p. 668.
î
muft
नू
i
FROM THE XIth TO THE XVth CENTURY. 267
muſt have been the lot of the world. (q) We
cannot then agree with the remark of Dr.
Robertſon, (as far at leaſt as it may be fup-
poſed to concern the law of nations,) that
the progrefs which mankind had made
towards order and refinement, from the fall
of the Roman Empire to the opening of the
fifteenth century, muft appear immenſe. (r)
Much no doubt had been done, towards the
melioration of municipal eſtabliſhments, much
in fome of the ſciences, and in many of the arts:
but of the law of nations, as founded on the
principles of humanity and juftice, men
fcarcely feemed to have thought.
While fuch poor refpect was thus paid to
the lives of perfons who according to every
fentiment of generofity, if not according to
(9) Philip de Commines who lived long in the century
during which moft of the inhuman practices that have
been mentioned took place, has this remarkable paffage.
"Or felon mon advis, entre toutes les Seigneuries du
"monde dont J'ay connoiffance, où la chofe publique eft
"mieux traitée, et où il y'a nuls edifices abbatus, ny
"demolis pour guerre, c'eft Angleterre; et tombele fort et le
« malheur fur ceux qui font la guerre." L. 5. ch. 19.
(r) CHARLES V. Introd. S. 2.
the
268 HISTORY OF THE LAW IN EUROPE,
the principles of ftrict right, were entitled to
them, we cannot be greatly furpriſed that even
during times of peace, little regard was fhewn
to their liberty.
The power of moving at pleaſure over the
earth, is one of the natural rights of man-
kind; and though this right has been cur-
tailed in confequence of the inſtitution of
property and dominion, fo that men have
no longer the liberty of entering at will into
one anothers territories; yet whenever this
is done, the utmoſt that ought to enfue is im-
mediate expulfion. The right to detain them
priſoners can never be juftified, and is ftrenu-
ouſly denied by all chriſtian civilians. Never-
theleſs, we ſaw it univerfally exerciſed under
the Greek and Roman law of nations, (s)
and notwithſtanding the efforts of the Chrif
tian Church, the practice was by no means
worn out during the period before us. A
great number of examples might be adduced
to prove this.
this. I fhall confine myſelf to thoſe
few which were of the greateſt confequence
to others; and which from the facredneſs of
(s) See chap. vi.
character
1
FROM THE XIth TO THE XVth CENTURY. 269
?
character in thofe concerned, made every
attack upon their
their inviolability appear the
ftronger.
Poffibly the celebrated Norman invafion,
and if fo, the whole tenour of our laws, and
by far the moſt important tranfactions of the
earlier part of our hiſtory, may in fome mea-
fure be attributed to the existence of this
unjuſt cuſtom. In the year 1062, HAROLD
duke of Weffex, an afpirer to the crown of
England, was driven by a ſtorm into one of
the ports of the earl of Ponthieu on the coaſt
of Normandy. There was no war at that time
between the countries, but the Earl imme-
diately ſeized him, in order, according to the
cuſtom of the age, to make advantage of his
ranfom. The
The prifoner however was de-
manded by the duke of Normandy his fupe-
riour lord, not, as it might be thought, to
fet him at liberty without recompenfe, but
before he gave it, to exact from him an oath
that he would not oppofe him in his own
defigns upon the throne. HAROLD declared
the oath void on the plea of " Duress," and
purſuing his fortune obtained the crown.
The flimfy title of William received no ſmall
Lup-
}
}
270 HISTORY OF THE LAW IN EUROPE,
fupport in the eyes of men from this fuppofed
perjury of the duke of Weffex, with which
he did not fail perpetually to reproach
him. (t)
A more celebrated example of this fort of
injuftice, appears in the cafe of RICHARD
the Firft.
It is well known that that prince on his
return from the Holy Land, was fhipwrecked
in the Adriatic, and endeavouring to paſs
through the territories of the duke of Auſtria,
was arreſted, thrown into priſon, and after-
wards fold to the emperor Henry the Sixth.
Although this as might be expected, raifed
much indignation among his fubjects, and
actually called down the thunders of the
Pope, to whom he appealed, againſt the
authors of his misfortune; yet no mention.
feems to have been made of the tranſaction,
as a breach of the cuſtom of Nations.
one feems to have arifen from affection; the
other from the reputation he had acquired
in the fervice of CHRISTIANITY, and the
The
(t) See Will. of Malmſb. L. 2. p. 52. L. 3. p. 56.
Mat. Par. p. 1.
well
FROM THE XIth TO THE XVth CENTURY. 271
A
well known law that no one who had affumed
the croſs ſhould be interrupted by any act of
hoftility from enemies at home. Neither
the repreſentations of the See of Rome to
Henry and Leopold, nor his own complaints,
which refounded throughout Europe, make
the leaſt mention of it, as a violation of
public law on the contrary the affair in the
meaſures that were taken upon it, feems to
have been nothing extraordinary. Henry
writes an oftentatious account of the arreft to
Philip of France as a fortunate event which
would pleaſe him, and claims merit from the
tranfaction. (u) The immenfe ranfom of
100,000 marks was demanded, ſeveral fevere
articles were prefcribed, and fixty-feven
hoftages agreed upon for their perform-
ance, (x) as if he had been taken priſoner in
open battle. The ranfom was regularly raiſed
according to the feudal provifions for ſuch
cafes, and his mother Queen ELEANOR took
a voyage to Germany for the fettlement of
the affair. Before it was completed however,
there were many negociations with the King
(u) Hoveden. 410. Heming. cap. 63.
(x) Rym. Fœd, 1, 84.
of
272 HISTORY OF THE LAW IN EUROPE,
of France who wished to purchaſe this illuf
trious captive, and it was owing chiefly to
the veneration which the princes of Germany
had conceived for him, that the fale did not
actually take place. (y) The fale of priſoners,
it is to be obferved, as a matter of property,
was perfectly within the rules of nations then
in practice, as we ſhall preſently have occa-
fion to demonſtrate.
Two hundred years afterwards, we find a
remarkable inftance of the fame kind. In
1406 ROBERT king of Scotland, dreading the
violence of his brother the duke of Albany,
reſolved to ſend his fon and heir JAMES, for
fafety as well as for education, to France.
The young prince failing along the coaſt of
Norfolk in his paffage, and being feized with
illneſs, had the imprudence to venture on
fhore. He was immediately arreſted by the
people on the coaft and conducted to HENRY
the Fourth, who fenfible of the value of fuch
an inftrument againſt a nation with whom
there was almoft perpetual war, detained him
captive.
There was however at that time.
(y) Rapin Thoyr. Sub an. 1194.
no
FROM THE XIth TO THE XVth CENTURY. 273
;
no war between the countries, and James
even came provided with a letter from his
father to Henry, in caſe he ſhould be obliged
to touch in his dominions. His captivity
lafted eighteen years; during which, as the
only palliation that can be offered, no care
was wanting to complete his education. At
the end of that time he was not releaſed but
on the payment of a regular ranſom of forty
thouſand marks, and fwearing to preferve a
peace between the kingdoms. (t)
The next century faw the cuſtom ſtill in
exiſtence, and it is England again which fur-
nishes the cafe.
In 1506 the archduke Philip, king of
Caftile in right of his wife, paffing through
the channel from the Low Countries to Spain,
was forced by a tempeft into Falmouth, where
he landed, "
"weary and ficke," fays Speed,
"with the violent toffings of the fea." The
news of his arrival (to purfue the account)
ftirring up the men in authority thereabout,
(t) Rym. 10. 299, 300.
VOL. I.
T
Sir
274 HISTORY OF THE LAW IN EUROPE,
'
Sir Thomas Trenchard, with the fudden forces
of the country, not knowing what the matter
might be, came thither, and underſtanding the
quality of the ftranger, fent off poft to Court
for inſtructions. Sir John Carey alſo came
down to the coaft with a troop of armed men,
and Philip fearing conſtraint, becauſe they durft
not let him paſs without leave of the king, was
obliged to yield to his fortune. HENRY the
Seventh, at that time upon the throne, knew
the value of this opportunity too well to let
it flip, nor would he fuffer Philip to depart
the kingdom, till he had extorted from him
the Earl of Suffolk, his rival, to whom Philip
had till then afforded an afylum. (y) Such
were the maxims and conduct of States
during the times before us, in cafes where
juftice and the laws of hoſpitality, even as
practiſed by ſavages, called loudly for the re-
verſe. (x)
(y) Speed. 761.
5
While
(z) The practice was not worn out even fo low down.
as the laft century Cardinal de RICHELIEU, whofe progreſs
was feldom retarded by fcruples, having arreſted the Elector
Palatine, who had ventured into France upon the ftrength
of being at peace with that kingdom. The real motive for
his impriſonment, which was a very clofe one in the Bois de
Vincennes,
FROM THE XIth TO THE XVth CENTURY. 275
1
*
While things during a ſtate of peace bore
fo much the appearance of war, it was not
unnatural for the great men of thoſe times to
view one another with a jealouſy that was
perpetually on the watch; and the manner
in which this jealouſy diſplayed itſelf will fur-
niſh the next object of our confiderations.
The mutual fears of private men are ren-
dered uſeleſs, and are therefore diffipated by
the protection of the laws; but the fears of
kings, who are the repreſentatives of whole
ſtates, and who are therefore independent of
all tribunals, can never be laid afide, except
through the influence of good morals; and
where theſe are unknown, diftruft muſt be
univerfal. Hence the precautions which States
are conſtantly taking one againſt another; and
hence, during the ages in queſtion, the fear
even of perfonal violence was indulged, and
Vincennes, was his defign to treat for the army of the
deceaſed Duke of Saxe Weimar; the affigned reafon, the
right which all nations had to arrest ſtrangers who came
into the country without a fafe conduct. See Bougeant's
Hift. de la P. de Weftph. L. 5. S. 60.
T 2
for
276 HISTORY OF THE LAW IN EUROPE,
for the moſt part provided againſt, whenever
Kings or Generals came into contact with
one another.
Of this there is a variety of
inftances, and none fo remarkable as that ex-
hibited perpetually by two Sovereigns who,
from their weight and power, the one in tem-
poral, the other in facred matters, were with-
out conteſt regarded as the heads of Europe.
The continued claſh of interefts which di-
vided the Popes and the Emperors, it is not
our buſineſs to examine.. It is well known,
however, that the former boafted themſelves
the fucceffors of Saint Peter; the latter of the
antient Cæfars; in virtue of which, they both
equally claimed fuperiority over each other.
This, as might be expected, produced a
lafting jealoufy; and as the ceremonial of
Europe ordained that the Emperors fhould
receive their facred unction from the hands of
the Popes, it was ufual, previous to the com-
mencement of a ceremony where they were
to approach fo near to one another, for each
of them to take an oath that they would not
be guilty of affaffination during its perform-
ance. This remarkable oath was duly admi-
niftered to FREDERICK BARBAROSSA and
ADRIAN
Z
FROM THE XIth TO THE XVth CENTURY. 277
ADRIAN IV. upon the coronation of the for-
mer at Rome, in 1155. (a)
Commines has fet before us, with great
livelineſs of colouring, the mutual diſtruſts of
CHARLES the Bold, and LEWIS the Eleventh.
After the battle of Mont l'heri, a treaty was
fet on foot between thoſe two famous rivals,
which was foon concluded at Conflans.. While
the negociation went on, there was a ſuſpen-
fion of arms, during which they had feveral
conferences together, between Paris and the
Burgundian camp; and one day the Count
fuffered himſelf to return with the King
within the very ramparts of the town. In
modern times fuch a procedure would not
have been reckoned uncommon; it would
have cauſed neither furpriſe nor fear; the
Count, however, is related to have been quite
aftonished (tout efbabi) at his own raſhneſs,
though he put the beft face upon it; and
when it was known at the camp, the whole
army was filled with confternation. The
foldiers, who were amuſing themſelves in the
(a) Voltaire. Efp. des Nat. 2. 2.
T 3
fields
278 HISTORY OF THE LAW IN EUROPE,
fields without the intrenchments, were imme-
diately called in, and the generals affembled
together in council, where, after many mur-
murs at the rathneſs of their leader, the
Marechal de Bourgogne fpoke as follows:-
"If this young madman has thus gone to his
66 ruin, do not let us on that account be the
"ruin of his family and ourſelves: let every
man retire to his poft, and be prepared for
"the worft; we are ftill ftrong enough, if
"we keep together, to reach our own fron-
"tiers." Soon after this, the Count returned
fafe; and, upon feeing the Marechal de Bour-
gogne, cried out, "Do not blame me, for
"I know my own madneſs." All the army,
fays the hiftorian, praiſed the honour of
the king for not feizing him while in his
power; which, however, it was not again
thought prudent to tempt. (b) It is need-
lefs to obferve upon the cuſtoms of that time
in which praiſe could be given to a man
for not doing what, according to our preſent
ideas of juſtice, would have drawn upon him
the univerfal execration of Europe,
(E) Commines, L. 1. Ch. 13.
When
FROM THE XIth TO THE XVth CENTURY. 279
When the fame Monarch was invaded by
EDWARD the Fourth of England, he wiſhed
to avoid extremities by negotiation; and for
that purpoſe demanded a conference with the
King at Picquigny. The diftruft of the times
made it impoffible for theſe two crowned heads.
to meet without precautions, which would dif-
grace a modern tranfaction of the fame kind.
Upon a bridge over the Somme was erected a
barrier of ftrong trellis-work, fuch as forms
the cages of lions, the bars extending no far-
ther afunder than to admit a man's arm with
eaſe. Four gentlemen of the king of England's
party were admitted on the French fide, to
fee, fays Commines, what was doing among
them; and as many from their party, and for
the fame purpoſe, on the fide of the Engliſh.
In this manner it was that the heads of the
two greateſt nations in Europe were obliged
to meet (c) in the courfe of a tranfaction
which of all others demanded confidence, and
friendſhip, namely, the fettlement of peace.
This mode of meeting on different fides of
a barrier, was at that time common; Lewis
(c) Commines, L. 4. Ch. 9. 10,
T
I A
had
280 HISTORY OF THE LAW IN EUROPE,
had taken the fame precaution before, in his
interview with his own conftable St. Paul,
upon the bridge of Noyon; (d) and the
Dauphin his uncle had fet him the example
at his meeting with the Duke of Burgundy
on the bridge of Monterau Faut
yonne, where
indeed the latter loft his life.
While fuch was the conduct of crowned
heads and men of power towards one another,
it was almoſt a neceffary confequence that
thoſe who were only their reprefentatives
ſhould experience a treatment, and live under
cuſtoms, at leaſt as irregular. The facts re-
lating to the conduct towards Ambaffadors
and Heralds, during theſe times, evince it but
too fully. Edward the Black Prince, who
was the flower of chivalry, and whofe courteſy
in war will be renowned as long as our lan-
guage fhall exift, was himſelf, according to
our preſent maxims, not without fault in this
refpect; and his conduct towards Charles V.
of France, together with the deliberate advice
of his council, as deſcribed by Froiffart, will
fet before us very plainly the lax ideas upon
this fubject that were then entertained.
(d) Commines, L. 3. Ch. 11.
When
FROM THE XIth TO THE XVth CENTURY. 281
When Charles V. fent Envoys to him at
Bordeaux, to fummon him to anſwer certain
complaints which were preferred against him;
he was at firſt, fays Froiffart, quite melan-
choly at the affront. His barons and knights,
who it must be obſerved were then the moſt
courteous and moft accompliſhed in Europe,)
counſelled him to put the mesengers to death,
as the beſt recompence he could give them
for their freedom; but this he forbade. Un-
derſtanding, however, that they had come to
him without a fafe conduct, he ordered them
immediately to be purfued, taken, and thrown
into priſon, which was executed with joy,
adds the hiſtorian, by his council. (e) This
conduct of the Prince of Wales made Charles
more cautious in his declaration of war againſt
his father, to whom, fearing perhaps the fame
ſort of treatment, he ſent his defiance by the
hands of a mere fervant; and the Ambaffa-
dors at that time at the court of England,
are reprefented as tous joyeux when they found
themſelves fafe within the fortrefs of Boul-
logne. (f) Villaret in reprefenting this fact
!
(e) Froiffart, V. 1. Ch. 248.
(ƒ) Id. Ch. 251.
obferves
282 HISTORY OF THE LAW IN EUROPE,
!
obferves that the French King fent his de-
claration by a fervant, fearing that the law of
nations would not be more refpected at Lon-
don than it had been at Bordeaux. (g)
The term Law of Nations, however, is his
own; Froiffart relates the naked circumftance
of the cafe, and does not feem even to hint
that the procedure of the Prince was contrary
to the notions of right at that time received.
In fact, notwithſtanding the chivalry of the
age, which, as will be feen, produced much
change in the laws of war; cafes of nicety
were too little understood, and cuftoms were
far too irregular to build upon them as a
fettled fyftem; Villaret therefore, not only in
this, but in other inftances of his excellent
work, goes too far in attributing any preciſe
idea of the law of nations to thefe
ages, which
he conftantly does when he fpeaks of their
violation. In 1350, Raoul Comte d'Eu, con-
ftable of France and prifoner of the king of
England, obtained leave to return home on
his parole to procure his ranfom, and treat
of fome matters of ftate. His conduct at
(g) Hift. de Fr. 1. 389.
Caen,
FROM THE XIth TO THE XV th CENTURY. 283.
Caen, where he had been taken, is allowed
to have been fuch as to render his fidelity to
France fufpected; and he was painted to the
king, JOHN II. as a partizan of EDWARD,
come to ftir up fedition. For this, and fort
other treaſons which it is expressly stated he
had confeffed, he was beheaded; and Villaret
calls this, not only a breach of the law of
France, but of the law of nations. (b) In the
forms of his proceſs, that the laws of France
were violated, may poffibly be true; and un-
doubtedly according to the comprehenſive and
fcientific mode in which the law of nations.
has been treated by the moderns, JOHN may
be faid to have been guilty of a breach of
that law alfo, by executing a man who, though
his own fubject, was, as a prifoner of another,
civilly dead with reſpect to him. But whether
the ſtate of the law in fuch times as we have
deſcribed, admitted of fuch nicety of fpecula-
tion, and whether, confequently, Villaret has
not, in common with others, fallen into the
fault of fuppofing the law of nations to be
always the fame, may be made a reaſonable
queſtion.
(b) Hift. de Fr. I. 15.
Inftances
284 HISTORY OF THE LAW IN EUROPE,
Inftances in truth perpetually occur, both
before and after the above-mentioned tranf-
action of the Prince of Wales, in which the
rights of ambaffadors and public meffengers
were fet at defiance. In the year 1258
ELIZABETH, queen dowager of Sicily, fent
ambaffadors in behalf of her fon to MAIN-
FROI, who had poffeffed himſelf of the king-
dom; and theſe deputies exerciſing their
function with too much freedom, were feized
and put to death by that hardy ufurper. (i)
The Ambaffadors alſo whom ſhe ſent to the
POPE on the ſame ſubject, by his contrivance
met with the fame fate. (k) In 1350 the
Pope's legate, the reprefentative, not merely
of a temporal fovereign, but of the fpiritual
Father whom it was impiety to oppoſe, was
hung up by the heels by Don PEDRO, king
of Arragon, till he took off an excommunica-
tion he had ventured to publiſh; (/) and in
1464 LEWIS XI. in the cafe of the arreft of
Rubempré, by the Count of Charolois, held
publicly by the mouth of his chancellor, be-
(i) Burign. 2. 128.
(k) Id. Ib.
(2) Mod. Un. Hift. 17. 195. -
fore
FROM THE XIth TO THE XVth CENTURY. 285
fore PHILIP duke of BURGUNDY; that the
orders he had given him (Rubempré) to arrest
the agent of Britany going to the court of Ed-
ward IV. his enemy, were perfectly legitimate,
although at that time there was peace between
Britany and France. (m)
But if theſe proceedings fhould be eſteemed
mere violations of law, (and it muſt be ac-
knowledged fome of them are quoted more
with a view to fhew what was actually done,
than what was abfolutely legal;) there is
one cafe in the thirteenth century, fufficiently
remarkable, and which is exprefsly ftated to
have been the confequence of received cuftom.
The patriarch of Jerufalem, fays Joinville, had
become the captive of the Emirs of Egypt,
"Suivant la coutume alors ufiteé en PAYEN-
NIE, comme en CHRETIENTE que quand
"deux princes eftoient en guerre, fi l'un d'eux,
·❝ venoit à mourir, les Ambaffadeurs qui s'eftoient
46
envoyés réciproquement, demeurioent, prifon-
"niers et efclaves." (n) It may be fuppofed
that this law of nations related only to the
(1) Commines, L. 1. Ch. 1.
(4) Joinville vic. de St. Louis, P.67.
practice
286 HISTORY OF THE LAW IN EUROPE,
practice of war between Chriftians and Sa-
racens, which, as we fhall fee, was often very
different from that of the Chriftians among
one another; the paffage cited, however, ob-
ferves exprefsly that it was the custom among
Chriftians as well as Pagans.
Be this as it may, theſe examples, taken
from the hiſtory of various nations, and va-
rious parts of the period before us, demon-
ſtrate the little regularity that had hitherto
been introduced, even into a part of the law
of nations which on account of its neceffity is
almoft the first that is attended to by all com-
munities. The very heralds, without which
war can hardly be carried on, were not al-
ways fafe.
The duke of BEDFORD, regent
of France, the most accompliſhed prince of
his age, loaded the Guienne herald, fent to him
by the famous Pucelle, with chains; (0) and
though there is nothing which appears to
have diſtinguiſhed our EDWARD IV. for
(0) Villaret, 3. 408. Poffibly he might be excufed by
the circumftances of the times. The duke fought for his
nephew, crowned king of France; the herald fummoned
him to yield up the kingdom to Charles VII. the true king,
and things were thus in a ftate of civil war.
cruelty
FROM THE XIth TO THE XVth CENTURY. 287
;
cruelty beyond other generals of the time, yet
when LEWIS XI. commanded one of his
fervants, who was not a regular herald, to
affume the habit of one, and bear a meffage
from him to the English camp, he is faid by
Commines to have fallen upon his knees and
bewailed his fortune, as one fent to inftant
death. (p) Molloy makes a queſtion upon
this, whether the circumftance of the meffen-
ger's not being a regular herald, would have
entitled Edward to have ufed violence to-
wards him. (9) The queftion is not incurious,
as the laws concerning heralds were, from
their univerfality, part of the laws of nations;
and they were known by a particular habit,
which it would have been dangerous if every
one had been allowed to affume at pleaſure.
As it was, the meffenger (there being no
herald in the camp of Lewis,) was obliged to
inake himſelf a coat of arms out of the enfign
belonging to a trumpet, (r) and poffibly his
fright might have arifen from his knowledge
that he was ſo far an impoftor, as not to have
been regularly cloathed with the character he
(p) Commines, L. 4. Ch. 7.
(9) De Jur. Mar.
(r) Commines. ub. fup.
Was
288 HISTORY OF THE LAW IN EUROPE,
was about to undertake. If this were fo, it
is a remarkable part of the law of nations. In
the preſent day, any one taking upon him the
enfigns of office, and actually employed by
men having fufficient authority, would be
confidered in his perfon as facred and in-
violable.
In times like thefe, men had not quitted
the only, or at leaſt the chief mode by which
miſtruſtful and perfidious nations endeavour
to exact the preſervation of good faith. We
ſhall perhaps, in a future work, have occaſion
to treat of the general fubject of Hoftages:
but as this is merely an hiftorical enquiry, it
will be fufficient in this place to mark the
ideas entertained at this time of the rights
concerning them. They were violent to a
degree of cruelty and blood, it being ima-
gined (and the practice accorded with the
theory,) that an hoftage was delivered up to
the abfolute will and licence of the perſon re-
ceiving him; and as good faith was no part
of the character of the times, the lot of thefe
unfortunate men but too often challenges our
pity. Severe impriſonment, mutilations, and
death in cool blood, attend them every where
through-
FROM THE XIth TO THE XVth CENTURY. 289
1
throughout the hiftories. The Emperor
HENRY VI. returning from the conqueft of
Sicily, carried away with him the principal
lords and prelates of that kingdom, as hoſtages
for the fidelity of the reft. The kingdom
rifing against him in his abfence, they were
all puniſhed with the lofs of their eyes. (s)
The city of Moiſſac in Gafcony, having given
hoftages to furrender by a particular period
if not fuccoured, the duke of Anjou, fays
Froiffart, came there with his army and
hoſtages at the appointed time, and prepared
to put them to death, in cafe the commanders
broke their faith. The town knowing the
customs of war, furrendered immediately. (t)
But the most ample elucidation of the cuf
tom is to be found in the hiftory of the fiege
of a little caftle in Britany belonging to
Robert Knollys a famous general of Edward III.
It is attended with ſuch regular and deliberate
cruelty, proceeded fo plainly upon principles,
and defcribes fo fully the manners of the
time, that it deferves to be related in all its
circumftances.
(s) Heifs. Hift. d'Allemagne 1. 112. an. 1197.
(t) Froiffart, v. I. ch. 320.
VOL. I.
U
Knollys,
290 HISTORY OF THE LAW IN EUROPE,
{
Knollys, lord of the caftle of Derval, near
Breft, being called away to that city, left it
beſieged under the command of James Bruce
(or Broffe). The French preffing the fiege,
Bruce agreed to furrender, provided it was
not relieved within a certain time, and gave
hoſtages for the performance of his agree-
ment. In the mean while, Knollys return-
ing from Breft, fent word to the French com-
mander (who waited without hoftility, the
expiration of the time appointed,) that he
would not keep conditions made in his ab-
fence by a perſon who had not fufficient
power, and bade him retire or he would
attack him. The French replied that they
would keep on the defenfive till the end of
the period fixed for delivering up the caſtle,
and they ſhould then know what part to act.
The points of difference in this curious cafe,
which was plainly a SPONSIO, as it is called
by writers on the law of nations, are not
now before us; we have merely to mark the
fate of the hostages. Upon the expiration of
the term, Knollys perfifting to keep the
caſtle, the duke of Anjou who had taken the
command of the fiege, and who, according
to the hiftorian from whom I extract this
I
✔
account,
រ
FROM THE XIth TO THE XVth CENTURY, 291
account, was as brave and generous a prince
as any in Europe, was embarraffed what to
do with the hoftages he had received, and
aſked the advice of Garcias du Chatel. The
c
latter, "who knew what humanity demand-
ed, not leſs than what the law of arms
"awarded," told him that although the rigour
of war gave him the right to put theſe unfor-
tunate men to death; yet as it was not their
fault that Knollys continued obftinate, it
would be more merciful to reſtore them.
The duke acquiefced, and du Chatel con-
ducted them out of the camp. In this ſtate
of the affair, he was met by OLIVER de
CLISSON, one of the moſt diſtinguiſhed of
the French generals, and firnamed, for his
feverity, the butcher, who brought back the
hoſtages to the duke, and reprefented to him
that by this ill placed mercy he only en-
couraged the enemy to break their faith.
By this, and other ſtrong arguments, he ob-
tained from him the power of doing as he
pleaſed with them, and the unhappy men
accompanied by an executioner, were inſtantly
led down to the fide of the caſtle ditch, where
Knollys was fummoned to a conference. He
appeared at a window, and Cliffon fhewing
U 2
him
292 HISTORY OF THE LAW IN EUROPE,
1
him his friends, afked him if he would fuffer
them to die for his breach of faith. He re-
plied that he was guilty of no breach of faith,
that the blood of theſe innocent men would
therefore be upon the head of Chiffon, who
would thus well earn his firname of butcher,
and that if he perfifted, he knew how to
retaliate. (u) The favage Cliffon executed his
threat, (to the regret, adds Froiffart, of all the
army, two hundred of whom wept for their
deaths,) and on the inftant a fcaffold was
feen puſhed out from the window where
Knollys had appeared, and four French gen-
tlemen being brought forth, were beheaded
on the ſpot, and their heads and bodies thrown
down into the ditch among their friends.
Such were the particulars, and fuch the exact-
neſs of cruelty, in a cafe by no means in-
(u) The other particulars of Knollys' anfwer are a curi-
ous mark of the refignation that was expected from hoſtages
in thofe days. "Robert Knolles repartit, les gentiz hom-
L mes que vous tencz font mes amis il eft vray, et il n'y a
"rien que je ne donnaffe pour les fauver de votre inhu-
"manité; mais ces amis font genereux, et ils aiment
« mieux mourir que de m'obliger à faire une choſe hon-
«teufe, comme celle de me rendre foùs pretexte d'un traité
“nul et invalide."-Vie de Bertf. du Guefcelen. 246.
curious
FROM THE XIth TO THE XVth CENTURY. 293
curious in the laws of war as admitted by our
ancestors. (v)
Another great point which peculiarly
marked the want of regularity and order
which formed the character and the difgrace.
of the times, was that liberty which indivi-
duals claimed to do themſelves right, upon
foreign injury; and their confequent danger
of falling into the extreme of diſorder.-The
Kings and Magiftrates of the time, had fel-
dom the power, and not always the difpofi-
tion to exert one of the moſt important func-
tions of the Sovereignty committed to their
hands, namely the defence of their fubjects
from external infults; and in this weakneſs,
or this indolence, they allowed the martial
ſpirit of the age to take its courſe, and the
private fubjects of different monarchs waged
very cruel wars againſt one another, for a
confiderable length of time, without calling
out the force of their refpective nations in
their defence. I ſpeak not here of the famous
private wars of the Barons, which were the
confequences of actual Sovereignty, and will
(v) Ib. & Froiffart, v. 3. ch. 6. The latter fays Knol-
lys (or Canolls as he calls him,) executed all his prifoners.
U 3
be
294 HISTORY OF THE LAW IN EUROPE,
be fully reviewed under another head, (w)
but thoſe heterogeneous depredations which
were ſo often fuffered by way of Reprifals.
Repriſals, under proper control and atten-
tion, come regularly within the ſcope of the
Law of Nations as obferved at prefent; and
although I am aware that there is a great
authority for the contrary opinion, (x) yet it
is upon the whole fettled, that no private
hoftilities, however general, or however juſt,
will conſtitute what is called a legitimate and
public ftate of war. (y) So far indeed has
my lord Coke carried this point, that he
holds, if all the fubjects of a king of England
were to make war upon another country
in league with it, but without the affent of
the king; there would ftill be no breach of
the league between the two Countries. (z).
In the times before us various were the in-
ſtances in which individuals poffeffing no pub-
(w) Chap. XII. On the Influence of the Feudal Syftem,
(*) De Witte.
(y) Vattel. L. 2. ch. 4.
(2) Fourth Inft, 152,
lic
FROM THE XIth TO THE XVth CENTURY. 295
lic character, and authorized by no public com-
miffion, affumed, and were almoſt encouraged
to affume, the province of redreffing the
wrongs that were offered them from without.
I will ſelect one, which was not lefs remarkable
for the account which it affords us of the fenti-
ments of our anceſtors, than it was important
in the end, by involving the whole force of
two mighty nations in a ſerious war.
In 1292 two failors, the one Norman, the
other English, quarrelled in the port
of Bay-
onne, and began to fight with their fifts. The
Englishman being the weaker, is faid to have
ftabbed the other with his knife.-It was an
affair which challenged the intervention of
the civil tribunals, but being neglected by
the Magiſtrates, the Normans applied to their
King, (Philip le Bel) who with neglect ftill
more unpardonable, defired them to take
their own revenge. They inftantly put to
fea, and feizing the firft Engliſh fhip they
could find, hung up feveral of the crew, and
fome dogs at the fame time, at the maſt head,
The English retaliated without applying to
their Government, and things aroſe to that
height of irregularity, that (with the fame
indif
U 4
296 HISTORY OF THE LAW IN EUROPE,
indifference on the part of their kings,) the
one nation made alliance with the Irish and
Dutch; the other with the Flemings and
Genoefe. Two hundred Norman veffels
fcowered the Engliſh feas, and hanged all the
feamen they could find. Their enemies in
return fitted out a ftrong fleet, deſtroyed or
took the greater part of the Normans, and giv-
ing no quarter, maffacred them, to the amount
of fifteen thoufand men. The affair then
became too big for private hands, and the
Governments interpofing in form, it termi-
nated in that unfortunate war, which by the
lofs of Guienne entailed upon the two nations
an endleſs train of hoftilities, till it was re-
covered. (a)
While fuch laxity of diſcipline and of true
ſubordination prevailed, we can little wonder
if the paffions of private individuals were
allowed to enter into, and mingle with the
public adminiſtration of the laws of war.
When any one therefore had diftinguished
himſelf in zeal, or ſeverity, or fkill in the
deſtruction of enemies; far from reſpecting
(a) Heming. 39, 40. T. Walfing. 58, 60. Velly, 4.
31, 32.
him,
1
FROM THE XIth TO THE XVth CENTURY. 297
"
him, he was fometimes marked out for a
vengeance, which extended itſelf even to
innocent perfons. Thus when Geoffry Payen,
a French Captain, had been taken by fome
English troops in the wars of EDWARD III.
they at first contented themſelves with re-
quiring him to follow them to the town of
Benon, whence they had fallied; but upon
queſtioning him, and learning that he was in
the ſervice of de CLISSON their mortal enemy,
they then replied,
"Il faut mourir, puis que
"tu es à ce traiftre Cliffon, le plus cruel de nos
"ennemis. La deffus, en haine de fon Capi-
"taine," continues the hiftory, "ils tuérent ce
"brave Gentillhomme, ou pour le moins
"laifferent pour mort."-In return for this,
De Cliffon took an oath that he would not
ranſom any priſoners for a whole year, but
would put every one to death who fell into
his hands. (b)
In theſe times alſo, there exiſted a cuſtom
in full vigour which is to be traced to very
remote antiquity, but which the mildneſs of
modern improvements feems to have totally
(b) Vie de Bert. Du Ġuefc. 224, 225.
abolished,
298 HISTORY OF THE LAW IN EUROPE,
aboliſhed; I mean the practice of exacting
ranfoms for the liberty of prifoners.
Originally, from the ſuppoſed right of putting
captives to death, it was held lawful to re-
duce them, as an act of mercy, to perpetual
flavery; of which in the preceding chapters
we have felected various inftances; nor was
the practice wholly worn out, even fo far
down as the fourteenth century, Lewis Hutin
in a letter to Edward II. his vaffal and ally,
defiring him to arreft his enemies the Flem-
ings, and to make them flaves and ferfs. (c)
Men however who made war for booty as
well as from a thirſt of vengeance, were foon
willing to exchange a prifoner whofe life
might be burthenfome, and whofe death
was indifferent to them, for advantages more
convenient and manageable. Accordingly,
even the Scandinavian and Scythian nations,
whoſe paffion for flaughter ſo often makes us
fhudder, condefcended at laft to accept of
ranfom for their captives; and during the
ages we are examining, the cuſtom appears
(c) "Mettre par deveres vous, fi comme forfaiz à
vous, Sers et Efclaves à toux jours." Rymer 3. 488.
to
FROM THE XIth TO THE XVth CENTURY, 299-
to have grown univerfal and been regulated
by fixed and known rules. The chief among
them ſeems to have been, that the prifoner
ſhould remain the property of him who had
the fortune to take him, though in fome
inſtances the king, as beſt able to judge of
the expediency of giving liberty to particular
enemies, claimed a right to retain them him-
felf, at a price much inferiour to that which
the captor might have expected. It is faid
by a French antiquary, that the king of
France had the privilege of purchaſing any
priſoner from his conqueror on the payment
of 10,000 livres; (d) and it is remarkable
that the money paid by EDWARD III. to
Denis de Morbec for his prifoner JOHN king of
France, taken at Poitiers, amounted to that pre-
cife fum. (e) Edward afterwards exacted three
millions of gold crowns, amounting, it is
computed, to 1,500,000l. of our prefent money,
for the liberty of his illuftrious captive, (f)
and a kind of reproach on ſuch an immenſe diſ-
(d) Paſquier recherches de la Fr. L. 4. ch. 12.
(e) Villaret 1. 248.
{ƒ) Id.
pro-
300 HISTORY OF THE LAW IN EUROPE,
proportion, eſcapes from Villaret in this part
of his hiſtory. (g)
**
The reproach is unmerited. However juft
it might be, according to the maxims of the
time, that the conqueror fhould be rewarded
for his valour and addrefs in capturing a
potent or dangerous enemy; the power of
giving him liberty at pleaſure, might have
been very prejudicial to the ftate; and as
every foldier fought for the good of the com-
mon weal, as well as his own, it was not a
debt of juftice to give him the whole, or
even the greater part of the profit upon the
prifoner. In the caſe of John, whole Towns
and Provinces were yielded up to the ftate,
befides the immenſe ſum above mentioned :
it cannot be fuppofed that de Morbec had any
right to theſe! It was probably upon fuch
principles that Henry IV. forbade the Percies
to ranſom their priſoners taken at Holmdown..
They were the moft illuftrious of the Scotch
nobility, and the king perhaps in retaining
them, had views of ſtate which looked much
farther than the mere advantage of their ran-
fom. He feems to have publiſhed his prohi-
(g) Hift. de Fr. 1. 248.
bition
}
5
FROM THE XIth TO THE XVth CENTURY. 301
bition to the Percies, in confequence of his
prerogative, and though the proclamation ac-
knowledges their right, (b) yet by his haughty
perſeverance in the exertion of his claim, he
drove that powerful family into their famous,
and, to themſelves, fatal rebellion. (¿)
It was thus however, for the moſt part, in
the option of the perfons in poffeffion of a
priſoner, whether or not to ranſom him, the
priſoner having no right to infift upon his
liberty, however great the advantage he might
offer in exchange for it; and in this, they
were governed by motives of policy, drawn
from his perfonal importance. ENTIUS king
of Sardinia, the fon of the Emperor FREDERIC
II. was of ſuch confequence to his father's
affairs, from his activity and fervices, that
upon being taken prifoner by the Bolognefe
army in 1248, no ranfom that could be
offered was able to obtain his liberty, and he
died at the end of a captivity of four and
twenty years. (k) CHARLES V. of France,
1
(b) Rym. 4. pt. 1. p. 36.
(i) Rapin Thoy v. Sub. an. 1403.
(k) Heifs Hift. de l'Emp. 1. 127. Pfeffel Droit Pub,
d'All, 1. 398.
purfued
:
302 HISTORY OF THE LAW IN EUROPE,
purſued the fame conduct towards the famous
Captal of Buche, whom he purchaſed of the
gentleman who took him for 1200 livres, (/)
and ſhut up in the Temple at Paris, re-
fuſing every offer made to him by Edward III,
for the liberty of an enemy he fo much fear-
ed, (m) Upon the fame principle, it was the
dying injunction of HENRY V. not to releafe
the duke of ORLEANS and the Comte D'EU
who had been captured at Agincourt, till his
fon, then an infant, was capable of govern-
ing; (2) nor were thofe noblemen allowed to
ranfom themſelves till feventeen years after-
wards. (0)
}
When reaſons of ftate however did not inter-
fere, the general rule before mentioned, took
place, and the conqueror made what profit
he could of his prifoner. Froiſſart ſpeaking
of the confequences of the battle of Poitiers,
ſays, thoſe who had taken priſoners made as
much of them as they could, “ car à celuy,
(1) Froifs. v. 1. ch. 311. 328.
(m) Id. v. 1. ch. 328.
(n) Rapin. fub an. 1422.
() Villar. Hift. de Fr. 4. 129. 131.
CC
qui
FROM THE XIth TO THE XVth CENTURY. 303
" qui prenoit priſonnier en la battaile, de leur
"cofté le prifonnier eftoit fien, et le pouvoit
"quitter ou rançonner à fa volonté." He
adds that the English became very rich in
confequence of that battle, as well by ran-
foms as other plunder. (p)
In a rencontre between a Scotch and En-
gliſh knight, the ſame hiſtorian ſays, the for-
mer purſued the latter, et pour vaillance et
pour gaigner, and indeed according to M.
Sainte Palaye (9) the ranſom of priſoners was
one great mean, by which the knights of old
times were enabled to ſupport the magnifi-
cence, for which they were remarkable.
In the next century, the right continued
the fame, and by the articles of war eſtabliſhed
by Henry V. previous to his invaſion of
France, it was determined that "be it at the
battle, or other deedes of arms where
GC
prifoners be taken, who that firſt may have
"his faye fhall have him for his priſoner, and
"fhall not neede to abide by him."(r) Mr.
(p) Froiſs. v. 1. ch. 166. & v. 3. ch. 128.
(9) Mem. fur la Chevalerie 1. 309.
(r) MS. collect. of Petyt. preferved in the Library of
the Inner Temple.
Bar-
304 HISTORY OF THE LAW IN EUROPE,
Barrington underſtands faye to mean the
promife given to his captor by the per-
fon taken, that he would remain his pri-
foner, (s) in which he is fupported by vari-
ous paffages in the French hiftorians,
"don-
cc
ner fa foi," being the term made uſe of
when a perfon agreed to remain captive (t)
It is not unreaſonable to fuppofe with the
author laft mentioned, that the price of a
man's ranſom was, in general, one year's
revenue
(s) Obfervat. on the more ant. Stat. 391.
(t) Thomas Vercler taken by a French Efquire at
Poitiers, Froiffart fays La lay creança il ſa foy, que récoux
ou non recoux deineuroit fon prifonnier, v. 1. ch. 163.
The Efquire received 6000 nobles for his ranſom, and is
faid to have become a knight in confequence of this his
acceffion of fortune.-Bertrand du Gucfcelin furrounded by
the Engliſh at the battle of Auray, CHANDOS called out
to him to ſurrender, and Bertrand "luy donna ſa foy, et
"fut fon priſonnier."-Vie du Bert, du Gueſc. 79.--Joan
d'Arc being beaten in battle, faw the Baftard of Vendome
near her “ à qui elle ſe rendit et donné fa foy.”—Monftrel.
ad an. 1430. So alfo at the battle of Agincourt, the duke
of Alençon was killed in the moment when he had fur-
rendered, and the king vouloit prendre fa foy. Id. v. I,
ch. 148.
*
FROM THE XIth TO THE XVth CENTURY. 305
revenue of his eftate, (u) and the reafon
which he affigns for it is farther fupported
by the cuſtom of allowing men one entire
year of liberty, in order to procure the fum
agreed upon.
In theſe his endeavours he
was alfo confiderably affifted by the proviſions
of the feudal law, which flouriſhed in the
height of its vigour during the ages before
us, and by which, every vaſſal or tenant was
obliged to affift his lord with a fum pro-
portionable to the land he held, in order to
redeem him from captivity. (w)
The
(u) Montluc in his Commentaries fpeaks thus of the
ranſom he expected from Marco Antonio a Roman knight. Il
me va en l'entendement que facilement je prendrois prifonier
ce feigneur, et que fi je le pouvois attraper, j'etois riche à
j'amais, car pour le moins j'en aurois quatre vingt mille
ècus de rançom qui eftoit fon revenue d'un an, et néſtoit
pas trop. From this it ſhould ſeem that there were ſettled
terms upon which the captor and prifoner treated, and
that they generally agreed at the rate of a year's income,
qui n'eftoit pas trop. (See Sainte Palaye, Mem. fur la
Chevalerie, 1, 309, 365.)
(w) Feud. L. 2. tit. 24. Hence the ranſom of a king
who was always at the head of the greateſt number of vaſ-
fals, would naturally amount to the greateſt fum. Mr.
Barrington who, had he purſued his communications on
VOL I.
X
this
306 HISTORY OF THE LAW IN EUROPE,
The fums however which I find to have
been taken of different prifoners vary perhaps
more than the proportion of their revenues;
perfonal confequence as was before obſerved
having no doubt much weight in determin-
ing the value. BERTRAND DU GUESCELIN,
who had no eftate at all, valued his own
ranſom at 100,000 livres ; (x) the ranfom of
a king of Majorca, of the royal houſe of
Arragon, about the fame period, amounted
to exactly the fame fum; (y) and DAVID King
of Scotland, efter eleven years captivity, paid
100,000 marks for his liberty. (≈) The queen
of Edward III. who may be ſaid almoſt to
have commanded at the battle of Durham
where he was taken, required him of John
Copland the officer who actually made him
this fubject, would have rendered this part of our work
unneceffary, has quoted fome antient lines (Obferv. on the
Stat. 391.) relative to Hinckſton Hill, in Cornwall, fup-
pofed to be full of copper.
"Hinckfton Hill, well wrought,
"Is worth a king's ransom, dearly bought.”
(x) Vie de Bert. du Guefc. 137.
(y) Froiffart. v. I. ch. 299.
(z) Rym. 5. 65, 68.
priſoner;
FROM THE XIth TO THE XVth CENTURY. 07
}
priſoner; but knowing his value he poſitively
refuſed, on the plea that no one had a right
to demand him but the king. EDWARD fent
for him to Calais, where partly as a reward
for his gallantry, and partly in acknowledge-
ment of his claim, he endowed him with
500l. a year in land, and made him a knight
banneret. (a) CHARLES of BLOIS, captured
in this period of military glory for England,
agreed to pay 700,000 crowns for his ran-
fom, and left his two fons hoſtages for his
"good faith. (b) The famous MICHAEL de la
POLE, duke of Suffolk, paid 20,000l. fterling
when no more than a ſimple knight. (c) The
duke of Alençon paid 200,000 crowns, for
which he was forced actually to fell a part
of his eftates to the duke of Bretagne. (d)
Even the loweſt caprice fometimes governed
the demand, where money was not a great
object. LEWIS XI. having taken WOL-
FAING POULAIN, an officer of confidence of
MARY of BURGUNDY, infifted upon fome
(a) Rym. 5. 542. & Froiffart, I. 139.
(†) Rym. 5. 862.
(c) Speed. 675-
(d) Villaret 3. 389.
X 2
famous
308 HISTORY OF THE LAW IN EUROPE,
famous hounds belonging to the feigneur de
Boffu, as the only ranfom he would take.
Bofu at firft would not part with his dogs;
the king was obftinate, and a number of
couriers paffed between the parties on the
fubject, which was made an affair of ftate
before it was ſettled. (e)
When fuch immenfe advantages were to
be made of the perfons of men of confe-
quence; to take priſoners became a very pri-
mary object with thoſe who went to war;
and it operated well for humanity in one re-
ſpect, by faving many gallant lives which
might otherwiſe have been forfeited.
That they were forfeited in default of
ability to pay, appears but too clearly in
various, examples. In 1441, which is far
advanced in the period before us, the Engliſh
prifoners taken at Pontoife were brought to
(e) Garnier Hift. de Fr. 2. 23. By this time alfo it perhaps
had grown into a cuſtom to releaſe the firſt prifoner made
after the commencement of hoftilities, without ranſom
"Le Roy d'Angleterre commanda qu'on donnaft congé à
"ce Valet, veu que c'efloit leur premier prifonnier."-
Commines, L. 4. ch. 7.
(
Paris
FROM THE XIth TO THE XVth CENTURY. 309
Paris by CHARLES VII. a prince remarkable
for mildneſs in that age. They were chained
by the neck like dogs, and expoſed nearly
naked to the gaze and exultation of the popu-
lace. Thoſe who could pay their ranfom,
were then ſet free; thoſe who could not,
who were by far the greater number, were
bound hand and foot and precipitated into
the Seine. (f) So little had the laws of war
gained fince the time of the Avars, who
eight centuries before, had committed pre-
ciſely ſuch an act. (g) Under the reign of
LOUIS XI. the fame fate, and for the fame
default, was experienced by the inhabitants
of Liege; (b) and HENRY V. when he or-
dered the deaths of his prifoners upon the
alarm after the battle of Agincourt, faved thoſe
only from whom he expected confiderable
ranfoms. (i)
Its effects however in another reſpect were
difadvantageous, in fo far as that it held out
(f) Monftrelet ad an. 1441.
(g) See Ch. VIII.
(b) Garnier's Hift. de Fr. 1. 169.
(i) Rapin,
X 3
improper
310 HISTORY OF THE LAW IN EUROPE,
improper motives for war, and temptations,
when war was declared, to commit violence
and treachery.
The Engliſh are reprefented by Commines,
as always defirous of a war with France,
from the recollection of the riches they had
fo often acquired, not only by the plunder of
Towns, but the advantages made of numbers
of princes and lords whom it had been their
fortune to take. (k) The fame difpofition,
and proceeding from the fame motive, is
mentioned by Hollinfhed under the reign of
Richard II. (/) The feizure already men-
tioned of Richard I. and James of Scotland,
in times of peace, were perhaps owing in
part to the avarice of the Captors. In 1387
OLIVER de CLISSON conftable of France,
being with Safe conduct at the court of the
duke of Bretagne, between whom and him-
felf there had been old hatred; was ſhut up
(k) Commines, L. 6. ch. 2.
(2) Vol. II. ad. an. 1383. Hence alſo the ſturdy Hot-
fpur is not unnaturally repreſented in his dreams to be talking
of "Priſoners' ranfom, as well as of foldiers flain."-Firſt
P. Hen. IV. Act 2. Scene 6.
I
in
FROM THE XIth TO THE XVth CENTURY. 311
in a tower, into which, he had entered at the
duke's defire to examine its ftrength. He
was at firſt ordered by the favage Breton to
be tied in a fack and thrown into the fea;
but the latter being troubled in conſcience,
was afterwards glad to find his orders had
not been executed; notwithſtanding which,
CLISSON was not releaſed but upon a treaty
of ranſom for 100,000 livres. (m) During
the wars of PHILIP and EDWARD III. there
aroſe many a foldier of fortune, in other
words freebooters, who no doubt were en-
couraged in the profeffion by the hope of
making money by ranfoms. CROQUART, a
famous leader of what was called the com-
panies, is defcribed as having become ex-
tremely rich by ranfoming caftles and towns,
which, as he was then in the fervice of no
ftate, he could have had no right to attack.
In 1367, feveral knights of Suabia having
affociated to perform deeds of chivalry, were
tempted to uſe their power for the very de-
ftruction of the good order they had ſworn
(m) Froiffart, v. 3. ch. 57.
X 4
to
312 HISTORY OF THE LAW IN EUROPE,
to fupport. A rich Count of Wirtenberg re-
fiding in fecurity at his caftle at Wildbad, it
came into the heads of theſe knights that they
could procure a noble fum of money for the ran-
Som of him and his family; and for this pur-
pofe, headed by a Count Eberstein, they at-
tacked him, though without fuccefs (n)
A fuller and more regular cafe appears in the
conduct of Thomas of Canterbury.
While the duke of Lancaſter befieged Di-
nant, in Britanny, a ſuſpenſion of arms was
agreed upon, during which the foldiers of
each party had free liberty of ingrefs and
egreſs, at their reſpective ſtations. One of
the brothers of Bertrand du Gueſcelin, taking
advantage of this, was exercifing his horſe
in the fields, when he was met by a knight
called Thomas of Canterbury, who ſeeing him
richly dreffed and well mounted, and finding
him to be a brother of Bertrand's, imme-
diately feized him and demanded a thouſand
florins of gold for his ranſom. It was in vain
that the priſoner urged the truce in his de-
(1) Spitler's Hift. of Werten. quoted by Putter. B. 3.
ch. 3.
fence.
FROM THE XIth TO THE XVth CENTURY. 313
fence.-Canterbury perfifted, and Bertrand
coming into the camp to complain before the
duke of Lancaster, he afferted roundly, that
the capture was legitimate according to the
rules of honour, and that he would prove it
body to body. The duke, inſtead of prevent-
ing the combat, and giving liberty to the pri-
foner, was judge of the lifts; and it was not
till Bertrand was victorious that his brother
was reſtored. (0) In this cafe there could now
be no difficulty, and nothing proves more
fully than the circumſtances related, the crude
and irregular ideas of juſtice which were en-
tertained during thefe times. No ferjeant of
a modern army, but would have condemned
a man in the firſt inftance, who had behaved
like this lord Thomas of Canterbury; yet not-
withſtanding the reprefentations of du Guef
celin, whofe genius in the laws of war went
beyond that of his cotemporaries, a battle
was to be fought, and much ceremony gone
through, before the commander in chief,
a prince of royal blood, and eminent, accord-
ing to the account, for his knowledge in
thofe laws, could act with decifion. Though
(a) Vie de Bert. du Guefcelin. 32. et inf.
juftice
314 HISTORY OF THE LAW IN EUROPE,
juſtice was at laft done, it was only the con-
fequence of the fuccefs of the injured party,
and it is remarkable that the whole conduct
of the duke of Lancaster is praifed as a noble
example of honour. (p)
The avidity with which men fought for
priſoners made it alfo often dangerous to the
conquered parties themſelves. A man of
confequence known by his arms, was not
only marked out above the reft during the
battle, but became an object of ſcramble and
contention afterwards. At Poitiers the king of
France was nearly torn to pieces by the fol-
diers, who claimed him as the great prize
that was to enrich them. He was quickly car-
ried off from Morbec his captor, and the cry
of "It was I that took him!" refounded
among all who were near him.
preffed, he was forced to cry out to them,
"Gentlemen, gentlemen, lead me quietly to
"the prince of Wales, and do not quarrel
"about me, for I am of fufficient confequence
"to make you all rich." (q) In this fituation
(p) Vie de Bert. du Guefcelin. 32. et infr.
Thus
(9) Froiffart, v. 1. ch. 164. Seigneurs, Seigneurs, me-
nez moi courtoiſement, &c.
he
FROM THE XIth TO THE XVth CENTURY. 315
he was found by the earl of Warwick who
was fent to enquire for him, and who reſcued
him from the crowd. At the battle of the
Bridge of Luffac, Carlonnet the French com-
mander, fell into the hands of five or fix fol-
diers who difputed fo warmly about his pof-
feffion, that to end the difference they were
fairly going to kill him, when he was taken
from them by an Engliſh knight. (r) At the
battle of Agincourt eighteen French gentle-
men had entered into an agreement to direct
all their attacks against king HENRY, (moft
probably with the view of acquiring a for-
tune by his capture,) and hence one reafon
why the heat of battle was greateſt about his
perfon. The eighteen gentlemen periſhed in
their attempt. (s) Charles de Beaumont, feneſ-
chal of St. Dié, is faid to have died of
regret
at loſing the great ranſom he might have
gained had he taken the duke of Burgundy
priſoner at the battle of Nanci, inſtead of
killing him as he did, without knowing who
he was. (t)
(r) Vie de Bert. du Gueſc. 201.
(s) Chron. de Fr. ad. an. 1415.
(†) Commines, L. 5. ch. 10. n. 3. Garnier Hift. de
Fr. I. 389.
I cannot
316 HISTORY OF THE LAW IN EUROPE,
I cannot quit this fubject of ranfom, though
the account of it may appear already but too
long, without obferving that the value of a
priſoner's liberty was confidered as a fpecies
of wealth, and regularly transferred from one
to another like any other property. In older
times, as we have feen, the priſoner was actu-
ally a flave, and fold as fuch according to his
qualities and accompliſhments. In the ages
before us, he was fold, not on account of his
perfonal utility, but his ability and willingneſs
to pay a certain price for his freedom; or
the value of which his detention was to the
buyer. Hence inſtead of being allowed his
liberty in order the better to perform the
functions of a fervant, it was the buſineſs of
thoſe who poffeffed him to keep him under
cloſe guard. COEUR DE LION was fold, to
uſe the expreffion of his Ambaſſador at Rome,
like an ox or an afs, (u) to the Emperor,
who wanted to make money by his ranſom:
and PHILIP AUGUSTUS was long in treaty
for him, in order to get rid of a powerful
and irreconcileable enemy. Lewis XI. bought
(u) Ac fi bos effet, vel afinus, vendidit.-Mat. Par. ad
an. 1194.
the
f
FROM THE XIth TO THE XVth CENTURY. 317
the baſtard of Burgundy, taken priſoner by
René duke of Lorrain, for 10,000 crowns. (w)
He had before that, bought William of Cha-
lons prince of Orange, of the Sieur de Groflé,
who had taken him prifoner, for 20,000
crowns, and as the prince was not able to
repay him, required the fovereignty of his
whole principality in exchange for his liberty.
The poffeffors of the famous Pucelle, fold her
to the Engliſh for 10,000 livres and a penſion
of 300; (x) and the earl of Pembroke, being
taken priſoner by Henry king of Caftile, was
paid over, (his ranfom valued at 120,000
livres) to du Guefcelin, in part of the purchaſe
money of fome eftates which that General
had fold. The ranfoms of feveral other
Engliſh priſoners were fold at the fame time
for theſe Spaniſh eftates. The money for the
Earl however, as that nobleman was ill when
he was transferred, was not to be paid by
his Bankers at Bruges, till he ſhould be whol-
Some and plump, "Quand il feroit fain et en
"bon point." Unfortunately for Du Guefcelin,
Pembroke died before he left France, and
(w) Garnier, I. 335-
(*) Pafquier. Recher, de la Fr. 4. 12.
thus,
318 HISTORY OF THE LAW IN EUROPE,
I
{
thus, fays Froiffart, the Conftable loft his
money. (y) Hence it appears that in theſe
transfers,the receiver of the prifoner took upon
himſelf the riſk of loſing him, and in caſe of
death before payment, had no demand upon
the perfon who fold him.
Ranfoms were fometimes transferred as
preſents inſtead of money, which appears in the
cafe of one of the family of Blois, prefented by
RICHARD II. to the duke of Ireland, who
fold him to Oliver de Cliffon for 120,000
livres (~). It ſhould ſeem alſo that when any
doubt aroſe concerning the prifoner's willing-
neſs or ability to pay, fecurities might be taken
as in the regular tranſactions of barter and
fale; and this was the cafe of Henry Duke of
Brunſwick in 1404, who being taken prifoner
by the Count de la Lippe, was ranfomed for
one hundred thouſand crowns, part of which
was paid by the fecurites which he gave on
that occafion. (a) In cafes, however, which
occurred within the Empire, its Chief claimed
(y) Froiffart, v. 1. ch. 320.
(x) Villaret, 2. 220.
(a) Puffend. Introd. 3. 289.
the
FROM THE XIth TO THE XVth CENTURY. 319
the right of annulling fuch agreements, which
in the above tranſaction was actually done
on the plea of a defect in the cauſe of the war
between the parties, by the Emperor Robert.(b)
But the ſtrongeſt example of regularity in
transfers, and that, in a cafe when the cap-
tive was not a prifoner of war, is fhewn in
the tranfactions concerning Zizim, brother
of Bajazet, Emperor of the Turks. That
prince who had pretentions to the throne,
and had been beaten in battle by the Sultan,
fled for refuge to the knights of Rhodes. The
knights fearing to draw down upon them
all the forces of Bajazet, transferred him to
the king of France, Lewis XI. who notwith-
ſtanding his fuperftitious paffion for relics,
refuſed the offer of all that could be found in
the eaſtern Empire, in exchange for him, and
carefully kept him in cuſtody for the knights.
Seven years afterwards, it being neceffary to
obtain the favour of the Pope, CHARLES VIII.
yielded him to the See of Rome, and while
he was on the way, refuſed the whole king-
dom of Jerufalem which Bajazet offered to
(b) Rimius. Mem. de Bruns. 169.
i
conquer
P
320 HISTORY OF THE LAW IN EUROPE, &c.
conquer for him in exchange for this impor-
tant priſoner. He continued at Rome fix
years longer, and then was transferred back
again by treaty to the king, who wanted to
make uſe of him in his wild projects upon
Conftantinople. The laſt fale however, if I may
uſe the expreffion, was fraudulent, fince he
was ſuppoſed to be poifoned before his re-
delivery to the French, and died foon
after. (c)
Such are the most prominent features of
this remarkable cuftom, which was univerfal
in Europe during thefe ages, but which has now
wholly diſappeared before the milder ufages
introduced by modern refinement. Captivity,
in the preſent times, lafts no longer than the
war which occafioned it; prifoners are ftill
exchanged, as formerly, one againſt another,
but at the end of hoftilities, thofe which re-
main on either fide, are ſet at liberty without
ranfom. The old practice is now found to
exist only in tranfactions with the Mahometan
nations.
(c) Commines, L. 6. ch, 10. L. 7. ch. 15.
$
CHAP.
IMPROVEMENT OF, &c.
321
CHAP. X.
IMPROVEMENT OF THE LAW OF NATIONS.
ALTHOUGH the ſketch which has been
given of the maxims which governed the in-
tercourfe of States during theſe times, ex-
hibits for the moſt part ſtrong proofs of bar-
barity and diſorder; the natural tendency of
men towards improvement, had now begun.
to diſcloſe itſelf. There were many cauſes
for this which must be obvious to the reader
of hiſtorical obſervation. The Storehouſe of
the North had been for fome time exhaufted
the eagerness of defire after new habitations
was at an end; and though the thirſt of con-
queft continued, war was no longer the ſignal
for thoſe exterminating ravages which ſwept
away whole nations before the victors.
;
It was to the mighty and comprehenfive
genius of Charlemagne that Europe owed her
firſt improvements; and though his immenſe
Empire ſplit into fragments immediately upon
his death, yet from his time the weſtern
VOL. I.
Y
nations
Ą
322
IMPROVEMENT OF
1
nations began to affume the outlines of that
form and of thoſe political inſtitutions which
they at preſent wear. The aſpiring vigour of
this wonderful man did more for the world
than the exertions of whole ages before him.
It extended every where the advantages of
CHRISTIANITY; it improved the means of
communication; it gave cities and a po-
lice to the forefts of Germany; and, what
was of decifive importance, it unveiled the
fhores of the Baltic, whence a torrent of Sa-
vages had perpetually poured down upon the
nations who were then ſtruggling into order.
The geography, and the refources of the
north came thus in fome meaſure to be
known; men were freed from the conſtant
fear of extirpation in which they had lived;
and, encouraged to become ſtationary, they
were as wiſhful to preſerve and regulate their
conquefts, as they had before been furious
to extend them. Two centuries more, reared
the feeds which CHALEMAGNE had fown;
and (notwithſtanding the irregularities that
have been deſcribed,) from the beginning of
the eleventh century downwards, we find an
evident change in the face of Europe.
up
I
By
1
THE LAW OF NATIONS.
323
By this time the different nations had af-
fumed the appearance of a comparative union.
Alliances among fovereigns were frequent;
their independence and rights were tolerably
well marked out; and though when engaged
in war, their old barbarifm was but too plainly
to be diſcovered; yet their various modes of
connection, and the cuſtoms which governed
their intercourſe, prefented a regularity of
fhape and feature, which had before been
unknown. A ſtrong proof of this appears in
the cuſtom which began to be pretty general
about theſe times, of appealing to neutral
powers, when differences broke out among
them; and this not only with a view to en-
gage their affiftance, or mediation, but alfo
from their idea that the connections among
them were ſo cloſe, and their governing prin-
ciples fo much the fame, as to render it
neceſſary to lay before them the juſtice of
their caufe.
In 1176 we have a remarkable inſtance of
appeal and mediation in the courſe of a con-
teſt between the kings of Arragon and Navarre.
By the deed of compromife made between
them, they each of them depofited four caftles,
Y 2
as
324
IMPROVEMENT OF
as a pledge that they would abide by the de-
termination of HENRY king of England.
Each party was to fend Ambaffadors to re-
ceive his Judgment by a certain day; in the
caſe of ſickneſs, captivity, or death, they
were to wait each others arrival for thirty
days beyond the time appointed; and then,
in default of appearance, the caſtles of him
from whom the delay came, were to be for-
feited to the other; but in the cafe of the
death of HENRY, the Ambaffadors were to
proceed (ſubject to the fame agreement,)
to receive the judgment of the king of
France. (a)
Not a hundred years after this, the juft
SAINT LEWIS fat in judgment upon the
whole cauſe of difference between HENRY III.
of England, and his barons. He had been
choſen their umpire in form, and each party,
the king and queen in perfon, attended him
in all due folemnity at Amiens. Nor did he
confider the power thus given to him of a
trifling nature; he proceeded to the moſt im-
portant acts of authority; and in the name
(a) Rymer, 1. 43.
of
THE LAW OF NATIONS.
325
of the Holy Trinity, annulled the famous
conftitutions of Oxford; decreed the reſtora-
tion of the fortreffes which had been put into
the hands of the twenty-four barons, or
rather Regents, of the kingdom; and finally
ordained that the king ſhould be reſtored to
all his legitimate rights. (b)
In the fame century, the famous quarrel
between the Emperor FREDERICK II. and
the See of Rome, was difcuffed in appeals
and letters to the chief potentates of chriſten-
dom, as well as by arms. The letters of the
Emperor, particularly thofe to the king of
England, are long and argumentative, and
breathe the very ſpirit of a modern manifeſto
or ftate note. (c) In 1334 a treaty having
been entered into by the king of Bohemia and
other princes of Germany with the duke of
Brabant, under the mediation of PHILIP of
VALOIS, the latter ftyles himſelf at the head
of the deed-"Nommé et eleu juge, traicteur,
(b) See theſe and a number of other articles of no leſs
importance.-Mat. Par. 992. & Spiceleg. Vet. fcrip. 643.
(c) Literæ Fred, ad. Amicos. M. Par 490. 496. 520.
527.
Y
X 3
" et
326
IMPROVEMENT OF
"et aimable compofiteur, entre hauts hommes
"nos chiers amis," &c. (d)
But the moſt regular appeal which in thoſe
days appeared, was that publiſhed at Weft-
minſter by EDWARD III. againſt JOHN of
France in 1356 It is addreffed to the Pope,
to the Emperor, and to all the princes, lords,
and people of CHRISTENDOM in general. He
complains that people of that age wish to
palliate their own faults by blafting the inno-
cence of others; and he therefore believes it
a duty he owes to God and to humanity, to
paint the king of France in his proper colours,
He alſo juſtifies the king of Navarre from
the infamy imputed to him in making a
treaty to deliver up Normandy, by declaring
before God and on the word of a king, that
no fuch treaty had been made. (e) This was
preparatory to the war which he afterwards
declared againſt France, and no tranfaction
or manifeſto of the moſt regular modern
ftate, can be more orderly or legitimate.-
(d) Preuves des Troph. de Brabant. P. 160. ap. Du Mont.
an. 1334.
(e) Rymer. 5. 852.
The
THE LAW OF NATIONS.
327
The next century faw the fame fort of cuf-
tom in the appeal made by the kings of
Caftile and Arragon to the arbitration of
LEWIS XI. king of France, in 1463, (ƒ) and
we fhall foon have occafion to obſerve on a
variety of other appeals; which, as they
fprang from a particular fource, and will be
treated of at large in another place, need not
be mentioned here.
Such then was a ſmall part of the regularity
of appearance, notwithſtanding the inftances
of barbarity that have been related, which
Europe affumed during the period we have pro-
pofed to examine. It arofe no doubt, in fome
meaſure, from the tendency towards a cer-
tain order in affairs, which the inftitutions
and political connections of CHARLEMAGNE
had begun to generate. But excluſive of the
confequences of that momentous reign, they
were befides affected in the moft fenfible man-
ner by a ſet of remarkable cuſtoms, common
to all, which began to be vifible about the
eleventh century, and which are not more
(f) Villaret, 4. 459.
Y A
important
328
IMPROVEMENT OF, &c. .
important from their effects than they are
curious from their nicety. They are indeed
fo different from thoſe that have been related;
were fo long known; and fo intimately felt;
that we cannot turn our view to the ſubject,
without being ftruck with the viſible and
potent influence, which they had upon the
laws of the world.
CHAP.
OF THE INFLUENCE, &c.
329
CHAP XI.
OF THE INFLUENCE OF PARTICULAR INSTITUTIONS.
ABOUT this time, we find all the king-
doms of Europe; however diftinguished from
one another in race or manners; however dif-
ferent in their ftates of improvement, or
marked by particular animofities; agreeing in
the main, in the five following points:
I. In adopting the remarkable polity of the
FEUDAL SYSTEM; the intricate connections
to which it gave rife; and the numerous rights
of mutual interference which it perpetually
afforded.
II. In concurring in one general form of
RELIGIOUS WORSHIP; and particularly in
obeying one SPIRITUAL HEAD, whoſe
ufurpations, which firft began to affume
ftrength in this century, foon brought the
whole of their temporal affairs under his do-
minion; and whofe bigotry, ambition, or
avarice, changed the very ſpirit of true Re-
ligion,
330
OF THE INFLUENCE OF
ligion, and inculcated as a duty, the hatred
and perfecution of all thoſe who thought dif-
ferently from themſelves.
We fhall foon have occafion to obſerve the
new and remarkable appearance which Eu-
ROPE affumed in confequence of this; and
the great difference between the Laws of War
among Chriftians, and Infidels, which it
moted.
pro-
III. In reviving, and even exceeding, the
HEROIC AGES of antiquity, and ſetting up
a barrier, no leſs ftrong than fplendid, againſt
the miſchiefs and injuftice, which, though not
the immediate confequence of the FEUDAL
SYSTEM, were foſtered by it to a dangerous
and lamentable degree.
The extraordinary and beneficial effect
which CHIVALRY, the Inftitution we ſpeak
of, had upon the Law of Nations for feveral
centuries, muſt have ſhewn themſelves forcibly
to every mind of common enquiry.
IV. In thoſe frequent NEGOTIATIONS,
TREATIES, and POSITIVE CONVENTIONS,
fo
{
PARTICULAR INSTITUTIONS.
331
"
fo peculiar to the European Nations, with all
their numerous train of the Cafus Fœderis,
Guaranties, Alliances, and acquired rights,
which muft of themfelves alone have been
able to modify any Law of Nations that might
have exiſted; which certainly often inter-
fered with the Rights of Nature; and form,
what the writers call, the Pofitive Law of
Nations.
V. And Laftly, In endeavouring to ſettle a
certain ſcale of Rank and Precedency among
one another, upon principles peculiar to them-
felves, and the religion which united them ;
in marking out a difference in degree between
certain titles, and particular forms of govern-
ment; and confequently in forming a grada-
tion in the pre-eminence of the various Sove-
reignties which compofed the European Re-
public. This, although from the ftubborn-
neſs and pride of various nations, it was hardly
ever effected with accuracy, was ftill per-
petually attempted, and attempted upon argu-
ments and principles, of which the cere-
monial of the reft of the world was wholly
ignorant.
I am
332
OF THE INFLUENCE OF
I am well aware, that with refpect to three,
at leaſt, of theſe five points; it may be ob-
jected that they were known before the
eleventh century, and that therefore the epoch
we have adopted has been ill chofen. If we
conſider the ſubject, however, with any at-
tention, the objection will lofe moſt of its
force, when we find that although theſe
cuſtoms were known, their effects had hardly
been felt. The Feudal Law, for example, had
been long known in Europe; it has been dif-
covered by fome Critics among the inftitu-
tions of Rome; (a) and it is certainly to be
traced to the woods of Germany. It did not
arrive, however, at its full growth, till about
the eleventh century; and though it
may be
faid to have been univerfal before that period;
it was not till afterwards, that it was uni-
verfal, in all its mazes, its tyranny, and its
vigour. (b)
(a) Blackft. Com. 2. Ch. 4.
(b) See Blackft. 2.4. 5. Craig. J. Feud. Lyttelt. Hen. 2. 1.
Roberts, Ch. V. 1. Henault. Hift. Chron. de Fr. rem. fur
la 2nde race. Montefq. E. des Loix, L. 30. paffim. Velly
Hift. de Fr. 1. Putter. Conft. of Germ. 1. Hume. Append.
11. to Hift. of Eng. takes no notice of the Chronology of the
Syftem. Pfeffel Droit pub. d'Allem. (1. 234. 288) at-
tributes it to the twelfth century,
In
PARTICULAR INSTITUTIONS.
333
In England in particular, though its out-
lines were familiar to the Saxons, it was by no
means the fame with that obſerved by the reft
of the world, till after the Conqueft.
It is well known that the confequences of
the battle of Haftings, were not confined to
the mere change of mafters from HAROLD to
WILLIAM. The laws of the land; the no-
bility of the realm; the manners and lan-
and the art and maxims of war,
guage;
which prevailed among our anceſtors, under-
went an alteration during the Norman reigns,
and almoſt during the firft Norman reign,
the effect of which is not even yet worn out.
But if this had not been the caſe; had Wil-
liam fucceeded quietly to the throne; the
mere circumſtance of his uniting Normandy
with Britain, by which he laid the foundation
for thoſe extenfive feudal connections on the
Continent, which fo entirely engroffed the
nation for many hundred years afterwards;
would have marked the century in queftion,
as a moſt important one to this kingdom.
The animofities and friendſhips, the numerous
and intricate claims, and the thouſand cauſes
for war, to which that connection gave birth,
will
334
OF THE INFLUENCE OFT
will make it ever be confidered as a very mo-
mentous æra in the hiſtory of the LAW OF
NATIONS as obferved by the English.
With refpect to CHRISTIANITY, I am far
from imagining that its influence on the mind
was not felt long before this period; and in
part it has already been touched upon. (c) Its
good effects will ftill continue to be traced ;
but, unfortunately, the effects chiefly to be
deſcribed, aroſe from the corruption, rather
than the purity of the Church. It will be
fufficient to remark that this was the age of
GREGORY VII. the firm fupporter, if not the
founder of theſe Papal ufurpations, which
amounted to a tyranny the most wonderful
that ever fubjugated the mind of man: That
this was the age which faw the commence-
ment of thoſe defolating wars, which took
their riſe from zeal alone; were conducted,
from miſtaken principles, in a manner ſuch as
rendered the heart more ftubborn than it really
was; and fo far, did as much mischief to the
Law in queftion, as in other refpects it had
(c) Chap. VIII. ad fin.
fome-
A
PARTICULAR INSTITUTIONS.
335
fometimes done good. This alfo was the age
to which feveral diftinguiſhed kingdoms of
Europe actually attribute their converſion, (or
at leaſt the extenfion of their converſion) to
CHRISTIANITY; and they were therefore
only now introduced to participate in thoſe
effects upon the law, to the production of
which, it will be fhewn it fo powerfully
contributed. Paganiſm ftill exifted in many
parts of Denmark, Sweden and Norway, and
in almoſt the whole of Pruffia and Muf
covy. (d)
1
With reſpect to CHIVALRY, it is acknow-
ledged that its foundation was laid in this
century; and as for the CEREMONIAL of
Europe, it ſeemed unknown till long after-
wards and although the cuſtom of making
TREATIES had been from old time in uſe
yet their effect upon the politics and public
maxims of the world before this æra, it would
be difficult to difcover, if they ever had been
felt.
;
(d) Puffend. de reb. Succ. the reign of Ingo. and Introd.
à l'Hift. Univ. 5. Chs. 1, 2, Mod. Un. Hift. 28. 460. 29.
4II.
It
336
. OF THE INFLUENCE OF
It is, therefore, with more propriety than
at firſt it may appear, that I have referved the
confideration of the impreffions made upon
the law of nations by the five circumſtances
above mentioned, for the æra I have fixed
upon. At the fame time it may not be un-
neceſſary to premiſe, that in the following in-
veſtigations, ſuch very ftrict attention to any
particular cuſtom has not been paid, as to
confine it exactly within the bounds of the
period propofed. In general, whenever I
have found a law, or maxim, at its height
during this time, I have chofen to mention it
here but at the fame time I claim the li-
berty of fearching for its commencement in
the century before it, or of purſuing it to
any number of years afterwards, if afterwards
it fhould be found to exift.
;
The field is now wide before us; and
wthout any particular reafon for preferring
it, I fhall confider the different points, in
the order in which they have been men-
tioned. And first, therefore, of the FEUDAL
SYSTEM.
CHAP.
THE FEUDAL SYSTEM.
337
$
CHAP. XII.
OF THE INFLUENCE OF THE FEUDAL SYSTEM.
IN
obferving upon the effects of this re-
markable and extenfive Inftitution, it does
not fall within our plan to give any regular
account of its various regulations, its general
ſpirit, its difputed points, its thouſand niceties.
Such knowledge muft be fuppofed to have
been already obtained by thoſe who come to
the preſent enquiry. To examine it would
furpaſs the ſcope of this Treatiſe; and even if
it did not, the ſubject has already received all
the light which the labour, talents and judg-
ment of the beſt heads in Europe have been
able to give to it. Taking it therefore for
granted, that the whole learning upon the
point, is in the poffeffion of the reader; I fhall
proceed merely to examine its effect upon
the law of nations during the centuries when
it chiefly prevailed.
That effect, it must be owned, was not
vifibly to improve mankind; there was not
VOL I.
Z
fo
338
OF THE INFLUENCE OF
ſo great a difference as might be expected be-
tween the nations with whoſe cuſtoms we
have been ſo much ſhocked, and thoſe of the
feudal fovereigns. The chief feems to have
been, that the former were continually mi-
grating; the latter had become ſtationary;
the former give us the image of armies mov-
ing from plain to plain; the latter of armies
intrenched in their camp: but war was equally
the buſineſs and the delight of both, and both
were bloody, infolent, and rapacious.
The fuperiority, however, which is always
to be obſerved in ftationary over wandering
nations, came at laft to fhew itfelf; and the
wars of the times, although not lefs frequent
than before, began to be conducted on a fort
of principle and arrangement, approaching
ſomewhat to a fettled fyftem. The whole life
of the Barbarians was paffed in arms, and al-
moft in battle; and when to die a violent
death was a religious duty, it would have
been almoſt abfurd to have required any cauſe
for taking arms. (a) When government, how-
(w) Vid. Sup. Chap. VII.
ever,
THE FEUDAL SYSTEM.
339
ever, came to be well eſtabliſhed throughout
Europe, although little attention was for a
long time paid to it, yet it became a general
law to require a cauſe for hoſtility; the nature
of fovereignty began to be underſtood, and
the idea of legitimate and illegitimate wars was
thus by degrees adopted. On this fituation
of things, the feudal eſtabliſhments operated
with confiderable effect; and, by a minute at-
tention to their ſpirit and genius, we ſhall dif-
cover a variety of points in which the in-
tereſts and connections of nations were ex-
tended and modelled in a manner ſometimes
advantageous, fometimes the reverſe, but
which, had it not been for the feudal polity,
would never have been known.
One of the moſt obvious and general of its
effects, was the great multiplication of the
States of the world, and by confequence,
unhappily for mankind, the multiplication of
its cauſes for war.
A large portion of the Earth, governed by
one head and properly civilized under one
common Jurifdiction, muſt have fewer of
theſe cauſes, than the fame portion of the
Earth,
Z 2
340
OF THE INFLUENCE OF
Earth, divided into a number of ftates in-
dependent of one another. In the former
cafe, differences are accommodated by the
peaceable mode of trial and ſentence; in the
latter, the moft trifling perfonal quarrel, and,
(if the fubdivifions are purſued to any extent)
the common diffentions of private life, become
the fignals for public and general hoftilities.
Where this therefore takes place, not only the
manners of mankind, but their Law of Na-
tions, must be confiderable influenced; and
fuch was the effect of the Feudal Syſtem upon
the earlier ages of Europe.
(
It is the more neceffary to examine the
point under the prefent head, fince none but
Sovereigns can make legitimate war; and as
the Barons' wars, form a confpicuous part in
the hiſtory of theſe ages, we muſt naturally
refer to that which bestowed upon them a
right fo important.
This privilege, then, of taking arms at
pleafure, which, from the more private rank
and the ſubordination of thoſe who poffeffed
it, was known by the characteriſtic term of
PRIVATE WAR, was the most valuable right
I
in
THE FEUDAL SYSTEM.
34-I
in the eyes of an antient Baron which he
poffeffed, and one of the laft which he parted
with. However, it was rather modified and
brought into a fhape capable of producing
more energetic mifchief, than instituted, by
the Feudal Law. Moft barbarous nations
are remarkable for the determination with
which families and friends purfue and avenge
their injuries, and this from a political, as
well as a friendly motive. The antient na-
tions of Germany, (b) as well as the Indians
of America, prefent us every where with this
cuftom. From the former it was derived to
the different nations of Europe, (c) and it
was not only the diſpoſition, but the duty,
of
every Family to avenge the lofs of
any of
its members upon the family which had
caufed it. The hoftilities which arofe in con-
fequence, were called FAIDE (d), Feid, or
(b) Sufcipere tam inimicitias feu patris, feu propinqui
quam amicitias neceffe eft.-Tacit. de mor. Germ. C. 21.
(c) It continued among them fix hundred years.
Henault. Hift. Chron, de Fr. rem. fur la 2nde race.
(d) Spelm. Glofs. voc. Faida.
Du Cange. Differtation 29 fur Joinville, p. 330.
Z3
FEUD;
342
OF THE INFLUENCE OF
FEUD; (e) the Laws of moſt of the weſtern
countries not only let them país unpuniſhed,
but, by regulating, gave them authority; and
fo high was this duty carried, that in
many
places, whoever fucceeded to an Eſtate, fuc-
ceeded to the vengeance due for the death of
the laſt who had poffeffed it. (f)
As the notions of juftice, however, im-
proved, attempts were made to curtail, and by
degrees to abrogate this pernicious right; (g)
but their fuccefs was comparatively ſmall ;
and when, through the weakneſs of the Car-
lovingian Monarchs in France; (b) the dif-
orders of the Heptarchy in England; and of
the elective Government in Germany; (i)
cr
(e) Hence the phraſe ſtill in uſe, of " Deadly Feud," to
expreſs the extremity of hate between perfons or families.
Stewart's V. of Soc. 250.
(f) Ad quemcunque hæriditas pervenerit, ad illum
Ultio Proximi, &c. debet pertinere.
Leg. Angl. & Werinor. ap. Lindenp. tit. 6.
(g) In England, fo carly as the time of King Edmund.
An. 941.
L. L. Edm. ap. Spelm. Gloff. et Wilkins, Leg. Sax.
(b) Montefq. & Henault, ub. fup.
(i) Pfeffel. Droit. pub. d'Allemagne abreg. & Putter.
from the reign of Arnulph to Hen. V.
the
THE FEUDAL SYSTEM.
343
the power of Corporations in Italy; and the
community of territory which was left in
Spain, for every one who could conquer it
from the Moors; when, through theſe cauſes,
the independence of every Lord who owned
a fortrefs, or could maintain a man in arms,
was firmly eſtabliſhed; the FAIDA was eagerly
adopted, and extended into the right of Pri-
vate War, by all the Barons throughout
Europe. (k)
A new picture thus opens itſelf before us;
the weſtern world was not only divided into
a variety of independent nations, governed in
their intercourſe by certain general cuſtoms;
but each of them again was fubdivided into
fubordinate States, acknowledging indeed
(k) With deference to that learned writer, this feems
a more probable account of the rife of Private War among
the Feudal Barons, than that adopted by Profeffor Putter,
(Conftitut, of Germ. tranflat. by Dornford, B. 1. C.7.) who
contents himſelf with attributing it merely to the ufurpation
and pride of the Barons in the moments of weakneſs in their
Kings. This, as has been obſerved, might have foftered
and regulated it;` but it ſurely was originally nothing more
than a continuation of the FAIDA, which had long been
legal, and were never entirely fuppreſſed.
ZA
fome
+
344
OF THE INFLUENCE OF
fome one LORD PARAMOUNT; but all of
them equally independent of one another,
with the greater Kings of the Earth. France,
Germany, Britain, Italy and Spain, were
carved out, as it were, among the Lords of
innumerable Caſtles, (/) who made War and
Treaties with all the vigour and all the cere-
monies of powerful Monarchs.
The Corps Diplomatiques are full of theſe
Treaties, in which nothing can be diftin-
guiſhed in the intercourſe of theſe ſubordinate
(1) Nothing can bring this more forcibly to our obferva-
tion, than the bare recital of the number of Caftles and
Fortreffes poffeffed by the Barons of various Kingdoms,
In England, at the peace between Henry II. and Stephen,
eleven hundred and fifteen Caſtles were ordered to be de-
ftroyed.-Lyttelt. H. II. 1. 418.-In France, upon a ne-
gotiation for peace between Edw. III, and Ch. V. in the
year 1376, the Plenary Power of the French Ambaſſadors
contained a ſtate of the fortified places they were willing to
give up to Edward. They amounted to the aſtoniſhing
number of fourteen hundred walled Towns, and three
thouſand Fortreffes, in the province of Acquitaine alone.
Villaret, Hift. de Fr. 2. 491.
When we confider that theſe were not entertained for the
public defence againſt foreign enemies, but chiefly for that
protection which is now afforded by the Laws, without the
affiftance of a fingle Garrifon, how much reaſon have we
to rejoice in the changes of the times!
+
Vaffals
THE FEUDAL SYSTEM.
345
Vaffals, from that of independent Kings, ex-
cept when mention is made of the rights of
the Lord Paramount. Stewart and Lyttelton
have thought it worth while to preſerve ſe-
veral of them in their Appendices; and a
ſerious attention to them will fufficiently refute
a marked expreffion of a writer whofe very
high authority would have poffibly ſtopped
mẹ from proceeding in theſe confiderations,
had he not thrown it out as a mere obiter
dictum. Du Cange, after detailing the laws
which governed the cuftom of private war,
and obferving that the right was univerfal
among all the Western States, obferves, " Ce-
"pendant cette faculté de fe faire aninfi la
66
6C
guerre, eft contraire au Droit des Gens, qui
ne fouffre pas qu'aucune, autre ait le pouvoir
"de declarer et de faire la guerre, que les
"Princes et les Souverains, qui ne reconnoiffent
"perfonne au deffus d'eux." (m)
In this obfervation, the fubject of the law
of nations was not regularly before Du Cange;
or, if he had really confidered it, he neither
(m) Differtat. 29. fur Joinville. p. 342.
had
346
OF THE INFLUENCE OF
had taken the view of it which I have done,
in confidering it a particular law, confined by
cuſtom to particular nations; nor had he
actually confidered the whole nature of Sove-
reignty, which has a variety of modifications
that allow a feudal Vaffal to be fully Sove-
reign quoad the right of making peace and
war, with all but his Lord Paramount.
It is true that Charlemagne had denied
them this rank, even as it related to the right
of making war; and the following Capitulary
tends to ſupport the opinion of PUTTER re-
ſpecting the origin of that right: (n).
66
Nefcimus qua pernoxia inventione a non-
"nullis ufurpatum eft, ut hi qui nullo minifterio
CC
CC
publico fulciuntur, propter fua odia et diverfiffi-
mas voluntates peffimas, indebitum fibi ufurpant
"in vindicandis proximis et interficiendis homini-
"bus vindicta minifterium: et quod Rex faltem
"in uno exercere debuerat propter "terrorem
"multorum, ipfi impudenter in multis perpetrare
non metuunt propter, privatum odium.” (0)
(n) Vide note k, page 343.
(0) Capit. carolemag. L. 5. Sec. 180.
But
THE FEUDAL SYSTEM.
347
But although, during the time of CHAR-
LEMAGNE, the privilege might have been
thought an ufurpation; yet, during the fucceed-
ing ages, when the feudal ſyſtem had become
what it is generally confidered, and had affumed
that regularity of ſhape which it continued to
wear fo long; the vaffals were men of very
fuperiour conſequence to that which they had
before enjoyed; and, as far as it relates to
the right of war with one another, were not to
be diſtinguiſhed from States the most inde-
pendent. Hence therefore, when PHILIP
AUGUSTUS propofed to RICH. I. in a treaty
of peace, that their barons fhould be prevented
from making war upon one another; it was
refuſed by Richard, “ Quia videlicet violare
nolebat Confuetudines & Leges PICTAVIÆ vel
aliarum terrarum fuarum, in quibus confue-
tum erat ab antiquo, ut Magnates, caufas pro-
prias invicem allegarent. (p)
There was this difference, however, be-
tween independent States and the fubordinate
Sovereigns; that the former had no common
Tribunal to appeal to, and could only decide
P) Hoveden. P. 741.
by
348
OF THE INFLUENCE OF
*
by the fword; while the latter, on the con-
trary, could appeal, if they pleaſed, to their
Lord Paramount; and things were then de-
cided by the judgment of their Peers. Their
public maxims alfo among one another would,
no doubt, take their character from the ge-
neral Laws of their particular Nation; and as
Europe confifted of a certain clafs of Nations,
inſulated with reſpect to the reft of the world;
fo the petty Sovereigns that compofed any
particular State, may be faid to have formed
a diftinct claſs, with refpect to the rest of
Europe.
1
The accurate Beaumanoir, and the elaborate
Du Cange, have detailed the particular cuſtoms
attendant upon the private wars of the French
Barons, in a manner that throws great light
upon the ſubject; and they will be our
guides in much that we ſhall have occafion to
obſerve relating to them. And firſt, with re-
ſpect to the cauſes for War.
Theſe could only be fuch crimes as would
have been puniſhed with death had the in-
jured party appealed to the civil tribunals,
are what Beaumanoir calls "Vilains mefaits,"
1
and
THE FEUDAL SYSTEM.
349
and were always fome flagrant breach of the
Law, as Murder, Adultery, or Treafon. (9)
When any of theſe crimes had been per-
petrated, war was inftantly made by the fa-
mily injured againſt that which had done the
injury; for on theſe occafions they were
governed by the ſpirit of the old FAIDE. All
the relations, therefore, of the injured perſon
were bound to join themſelves to his ſtandard;
and every one of them not only had a right,
but was under obligation to attack the poſ-
feffions and the perfons of every one of the
hoſtile family. The obligation indeed was fo
ftrong, that, upon a refuſal to comply, men
were actually obliged to renounce their re-
lationſhip, and with it all their rights of fuc-
ceffion to family property, in a folemn and
public manner, often taken notice of by the
Salic Laws. (r)
But as Relationſhip was thus made to
confer the moſt important rights, and to fub-
(9) Coutumes de Beauvais. par Beaumanoir. Ch. 59.-
Du Cange. Differt. fur la vie de St. Louis. par Joinville. 29.
(r) Velly. Hift. de Fr. 3. 115. Henault ub. fup & tit.
63 of the Leg. Sal.
ject
350
OF THE INFLUENCE OF
ject a perfon to very cruel duties, it be-
came neceffary to define with accuracy how
far it ſhould extend, fo as to be brought
within the meaning of the Law and it was
determined at first, that beyond the feventh
degree of affinity, and afterwards, beyond the
fourth, where the Laws of the Church per-
mitted marriages to commence, any one who
choſe to ſtand neuter, was not bound to take
part with his family. If therefore, prompted
by affection, or a warlike ſpirit, he ſtill choſe to
fly to arms, he was then confidered as a prin-
cipal, and as fuch, was obliged alfo to declare
war in form; (s) fo that it fhould feem, thoſe
who were within the degrees of affinity were
not bound to comply with this ceremony after
it had once been gone through, by the perſon
who acted as principal. (†)
or
Such principal was called "CHEVETAIGNE,"
QUIEVETAINE," evidently the radix of
CC
($) Du Cange. up fup.
(t) Coutum. de Beauv. C. 59. Du Cange. Differt. 29.
für Joinville. p. 333. Theſe are circumſtances fufficiently re-
markable, but which either eſcaped the notice, or did not
fall within the fubject, of Dr. Robertſon. Introduct. to
Ch. 5.
the
THE FEUDAL SYSTEM.
351
1
the Engliſh word CHIEFTAIN, and fignified
a perſon who, to revenge an injury done to
his family, declared war againſt the of-
fender. (u) The forms of that declaration
were folemn and worthy of imitation; they
admitted alſo of fo many modifications, that
a thorough knowledge of them muſt have.
conftituted no inconfiderable part of the jurif
prudence of the times. They feem, how-
ever, to have been arranged under the two
divifions of DEEDS and WORDS.
War was declared by DEED, when it
arofe on the fudden, "Quant caudes melleés
ર
fourdent entre Gentixhommes d'une part et
“d'autre," (x) and in this cafe, all thoſe who
were prefent, were obliged to take part in it,
according to the fide to which they were at-
tached. (y) It was declared by WORDS when
the principals fent defiances to one another.
(C
Quant li un manece l'autre à fere villenie, ou
anjude de fon cors." There was, however,
a very material diftinction between the con-
duct of the Relations, and that of the Princi-
(u) Beauman. Ib.
(x) Ib. Id.
(y) Du Cange. 333.
pals;
352
OF THE INFLUENCE OF
pals; for the latter, being fuppoſed to under-
ſtand one another's caufes for complaint, might
enter upon the war immediately after the de-
claration; while the former, who might live
at a diftance, or might not be acquainted with
the procedure, were allowed forty days to
prepare themfelves, unlefs they happened to
be actually on the fpot when the quarrel
broke out; and this regulation was made by
PHILIP the HARDY, according to Beauma-
noir, (or Saint Lewis, according to Du
Cange), (x) as the means of aboliſhing by
degrees the whole of the practice in queſtion.
In Germany alfo, by what was called the Land-
friede, or Peace of the Empire, a (regulation of
Frederick I. confirmed by the GOLDEN BULL,)
a Baron going to war, was obliged to declare
himſelf an Enemy, and give three days notice
to his adverfary. (a)
1
ان
From this duty in the family to make
common caufe, it followed, that if two
Brothers made war upon one another, the
Law by which they were bound to affift
(z) Du Cange. 334.
(a) Putter. L. 2. C. 10. Golden Bull. Ch. 17. De Dif-
fidationibus. ap. Du Mont.
could
THE FEUDAL SYSTEM.
353
could not take place, the family being
equally related to them both, a cafe which
was altered if the Brothers were only
uterine. (b)
It is needleſs to obferve, while treating of
the effects of the Feudal Syſtem, that all the
Vaſſals of the Lord fupported him in the war.
What, however, was rather remarkable, and
can only be explained by the peculiar nature
of that fyftem, they could not be attacked ex-
cept while in arms, and on actual duty. As
foon as they had returned home, upon the
conclufion of their campaign, though the war
might continue between the principals, they
ceaſed to be parties; having barely performed
the regular fervice required of them by the
Feudal Law. (c)
The rights of the Individuals of the family
were no lefs important when the difference
(b) Beaum. ut fup. Du Cange. p. 333.
(c) Beaumanoir, Ch. 59. It is extraordinary that Dr.
Robertſon, whofe accuracy and obfervation upon this fub-
ject no one can queftion, with Beaumanoir before him,
has alfo neglected this circumftance, the importance of
which as to the Law of Nations muſt be evident.
VOL. I.
A a
came
354
OF THE INFLUENCE OF
came to be terminated, than they had been on
the breaking out of the war. They were all
to be confulted, and all of them had a right to
put a negative on the negotiation. This ne-
gative, however, was not binding upon thoſe
who were tired of the quarrel, and were
willing to make peace; and in that cafe
therefore the perfons concerned, affumed new
fituations. He, who perhaps had been the
original QUIEVETAINE, retired from the
war; and he, who had only engaged as
auxiliary, was left as principal; nor were any
of his family, not even the perſon whoſe in-
jury had been the cauſe of the feud, bound to
affift him. But that it might be underſtood
what was the precife fituation of the parties,
new declarations were to be made, in which
it was known who were to be confidered as
friends, and who were to remain as enemies 40
and if without fuch declaration any act of
hoftility was committed, the perpetrator was
guilty of a kind of treaſon, (paix briſee) and
might be puniſhed with a halter. (d)
There
(d) Beauman, Pa. 301, et infra. The Prefident Henault
feems to have loft fight of his ufual accuracy in throwing
the rights of Private War and of the Duel together. Im-
inediately
THE FEUDAL SYSTEM.
355
There were three modes of terminating theſe
differences, according as the parties could
agree.-I. By making a regular treaty of
peace.—II. By taking bonds of afſurance from
one another, to fufpend hoftilities, and abide
the deciſion of a fuperiour Lord.-III. By
fingle combat.
The firſt, as it was not peculiar to the
Feudal Syftem, need not be taken notice of here.
By the ſecond, either party, (and generally, as
was natural, that which was the weakeft)
might fummon his adverfary to the Lord's
Court, and oblige him to give bond that he
would not moleft him farther, either in his
perfon, in his family, or his goods, but bring
the difference regularly before the Juriſdiction
of the Court. In order to underſtand this
mediately after defcanting upon the miſchiefs of private war,
he fays, "Cependant ces combats eurent befoin depuis de la
"permiffion expreffe du Prince; en forte que c'etoit une
"crime de leze majefté de ſe donner Camp et Jour," &c.
{Rem fur la 2nde race.)
This and what follows evidently have reference to the
Laws of Single Combat, which was a mode of legal trial,
and had no connection with the right of Private War, a
right enjoyed as a privilege of the Fief, and in fpite of the
authority of the Sovereign.
A a 2
the
356
OF THE INFLUENCE OF
the better, it muſt be remembered, that al-
though two Barons, having the right of war,
might, and generally did, fly to arms upon
every quarrel, yet this did not deſtroy the
power of civil tribunals. Though much
neglected, they were ſtill open, and when ap-
pealed to, did juſtice in the manner they beſt
were able. None, however, but the Courts
which poffeffed the privilege of what was
called the HIGH JUSTICE, in other words,
the power of life and death, could take cogni-
zance of theſe diſputes; the reaſon for which
will be obvious when it is recollected that
none but crimes which in the event of con-
viction could be puniſhed capitally, were the
fair and legal caufes for war during that
time. (e) We may imagine, however, the little
(e) Vide fupra. Dr. Robertfon, in his Note X, Sec. I.
Introd. to Ch. 5. in which abundance of learning is dif-
played, has been ſomewhat inaccurate, or rather not ample
enough in his account of this matter. He contents himſelf
with ſaying that Bonds were granted voluntarily, or exacted
by the Magiſtrate, to abſtain from hoftilities, and that after-
wards, if any were committed, the penalty of Treaſon was
incurred. He makes no mention at all of the trial of the
original difference before the Civil Courts, the very cauſe,
probably, why it ſhould then be confidered as Treaſon.
efficacy
THE FEUDAL SYSTEM.
357
efficacy of this mode of terminating differences,
when the ſtrongeſt party was often fuperiour,
not only to his Adverfary, but to the Judge
himſelf; for it depended upon the accidents
of power or firmnefs in the Lord, whether
ſubſtantial Juftice could ever be done. So
late as the year 1224, Fowkes de Breauté,
having thirty-five verdicts of diffeifin paft
againſt him, fet the King's Judges themſelves
at defiance, and nimis inconfulte agens, to ufe
Matthew Paris' expreffion, bound them in
chains, threw them into Bedford Caſtle, and
confined them in the Dungeon; nor could
he be puniſhed according to his merits; for
though his Brothers and others who affifted
him, to the number of twenty-four, were
hanged, he himſelf eſcaped with the milder
puniſhment of exile. (ƒ)
The third mode of terminating a private
war, was by DUEL, the nature of which is
too well known to need any particular dif-
cuffion. We may obferve, however, that al-
though Beaumanoir has confidered it as a
feparate mode, it rather feems to have been
(ƒ) M. Par. 320.
A a 3
the
358
OF THE INFLUENCE OF
}
the confequence of the laft, namely, the Ap--
peal to the Lord's Court; the Reader not
being to be told, that even before the regular
Jurifdiction, the DUEL was often the very
mode of the trial.
Such is the account of the maxims of
Private War, as it prevailed among the Barons
of France; and which, according to the
Syſtem we purſue, may be not unreaſonably
confidered as a part of the Law of Nations in
this time.
But France, the faireft, and moſt extenſive
country of the Chriftian World; the Parent
of fo many Colonies, and even of King-
doms, (g) could not fail to have much in-
fluence upon the maxims and manners of
other Nations, and it may therefore be not
unfairly ſuppoſed, that much of the genius
and ſpirit of theſe Laws, pervaded the Feudal
Polity in other parts of Europe.
(3) Of Sicily, of Naples, of Jerufalem, of Flanders, at
one time of the whole Greek Empire, and in fome meaſure
of England. Sce the Hiftories.
In
THE FEUDAL SYSTEM.
359
In Germany, Private War raged with
univerfal violence; and from the elective
conftitution of the Empire, the confequent
weakneſs of the Government, and the cir-
cumftance that the Papal thunders were firft
directed into that quarter, no efforts of the
Sovereign could put an end to it till the
very end of the fifteenth Century, when the
erection and firm fupport of the Imperial
Chamber, habituated men to a more regular
courſe of Juſtice. (b) Even fo late as the
beginning of the fourteenth Century, the dif-
orders of that Country roſe to ſuch a height,
that fixty cities of the Rhine, together with
the three Ecclefiaftical Electors, the Prince
Palatine, and the Duke of Bavaria, were
obliged to affociate together to defend them-
felves againſt the Protectors and Relations of
Robbers, on the highway, who might uſe their
right of war to avenge their deaths. (i) Among
other cauſes for this, there is perhaps none
ftronger, or which demonftrates the vices of
an elective Government with greater force,
(b) Pfeffel. ſub, ann. 1495,
(i) Heiff. 1. 152. Pfeffel. 1. 416. the Deed is in Du
Mont. Corps Dip. L
A a 4
than
360
OF THE INFLUENCE OF
than the little intereft which the Emperors
themſelves had to fupport the fupreme au-
thority. As they knew that every advance
to good order would weaken the power of
their families, in cafe they did not fucceed to
the throne, they were the lefs concerned to
attempt, what all the other crowned heads in
Europe were perpctually endeavouring to
effectuate. Hence the ftrong circumftance,
that the Princes of the Empire, who were
originally nothing more than the other Barons
of Europe, have continued Sovereigns to this
day, and may exerciſe the fame right of war
in common with all other Sovereigns (k).
In Italy, which was at a ſtill greater diſtance
from the feat of Government, the Emperor
loft his power fooner. The original Vaffals
of CHARLEMAGNE and OTHо, not only
afferted the privilege of Private War as a
feudal right, but became, and are ſtill, more
independent of their Chief, than their fellow
Sovereigns in Germany; and this was one of
the reaſons why the Kings of France allowed
them
(k) Even the Lanfriede, or Public Peace, a fundamental
conſtitution of the Emperor Frederick I. for the preſervation
of
THE FEUDAL SYSTEM.
361
them to clothe their Foreign Minifters with
the full repreſentative character of Ambaſſador,
which they often denied to the Electors. (1)
In Spain, where revenge is almoſt a point
of honour, and forms part of the national
character, the right in queftion may be fup-
poſed to have been carried to its height; and
its abolition was alſo proportionably later ;
the regulations for this-purpoſe having been
ineffectual till the time of CHARLES V. in
the year 1519. (m)
The hiftory of the northern kingdoms, is
for many a century the hiſtory of anarchy
and murder; and Private War flouriſhed
there but too long. In Sweden, it is remark-
able, that it was the Clergy who laft poffeffed
the means of it, and fo late as the reign of
GUSTAVUS ERICSEN, an act of the ſtates
of the tranquillity of the Empire; while it threatened Rob-
bers and Incendiaries with the Ban, reſerved to every one
a right to do juſtice to himſelf, provided he gave three days
notice to his Adverſary.
Putter. B. 2. Ch. 10. Vide Sup.
7) See Wicquefort de l'Ambaffad.
(m) Robertfon. Introd. Ch. V. Note X,
was
362
OF THE INFLUENCE OF
was neceffary to veft in the King the poffeffion
of their numerous Caftles. (n)
But of all the Nations of Europe, perhaps
without the exception of Poland, this remark-
able right exifted longeft in the northern
parts of Great Britain. A HIGHLAND CHIEF
was always formidable, even to his Sovereign,
as well as to his Neighbours, and his power
and name have been dreaded in the extremity
of the fouth.-Nor was it till late in the
prefent century, and that in confequence of
the influence of the Pretender in Scotland,
that they received their final blow.
feverity and language of the different acts
that have paffed againſt them, beſpeak, in
ftrong terms, the manners and cuftoms of
this warlike people. (0)
The
In
() Mod. Un. Hift. 29. 378. Erickſon died in 1566.
(0) By 1 Geo. I. Cap. 56. the being found poffeffed of
Arms in the Highlands, for the fecond offence, was puniſhed
with feven years tranſportation; and only men of 400
pounds Scots, revenue, could keep two firelocks. Nothing
is more characteristic of the fpirit of private war than the
Infeription mentioned by Johnſon, (Tour to the Hebrid
« It
the account of Col.) upon an´old Caſtle in Scotland.
"any man of the Clan of Maclonich fhall appear before
{
}
"this
THE FEUDAL SYSTEM.
363
出
​In this univerfality of independence in the
Barons of Europe, we may imagine that the
English were not without their ſhare; and
accordingly the right in queftion was tranf-
mitted to them from the Saxons, and, but too
often exerciſed. They maintained Courts of
their own, and officers whofe characters be-
ſpoke the parade of royalty under the names
of Conftable, Marefchal, Jufticiary, Senefchal,
and Chancellor. (p)
The families of Northumberland, Glou-
cefter, Warrenne, and Warwick, are illuftrious
for this fort of power, and of the latter, he
who was known by the name of King Maker,
was alone ſuppoſed to ſupport 30,000 retainers
at his different Manours and Caftles.-We
have a further ſtrong inftance of his power,
and the ſpirit and fovereignty affumed by the
feudal Lords, in the Memoirs of Commines.
WARWICK was Governor of Calais, and the
town feemed little to confider who poffeffed
the throne of England, but rather looked to
"this Caſtle, though he come at midnight, with a man's
"head in his hand, he fhall there find fafety and protection
"againſt all but the King."
(p) Hume's Appendix II.
him
364
OF THE INFLUENCE OF
him as their Sovereign.
When, therefore,
Commines was fent there from the Duke of
Burgundy, he found the whole Garrifon in
his Livery, and as a compliment had the
Apartment affigned for him, decorated with
white Croffes (the Arms of France) and rhimes,
importing that the King of France and the Earl
of Warwick were good friends. (q)
Dr. Robertfon, however, obferves, that the
mention of Private War, in England, is more
rare than in other countries; (r) poffibly
owing to the cauſe he affigns of the fuperiour
vigour of the Norman Kings, The fact is
certain, that though many of the Barons roſe
to a great height of power, there were in
England none of thoſe immenſe fiefs which
in France, Germany, and Italy, ſplit the
monarchy into fragments, (s) nor was the un-
(9) Commines, L. 3. Ch. 6.
(r) Note X. Introd. to Ch. 5,
(s) Henry, the Lion of Saxony, extended his territories
from the Adriatic to the Baltic, and poffeffed Saxony,
Bavaria, and Weftphalia. Heneault 1180. Puffend. In-
trod. 3. 271. Putter. 2. 10.
The great fiefs of Normandy, Acquitaine, Bretagne,
and above all, Burgundy, were able at any time to ſhake
the whole Monarchy of France.
wife
THE FEUDAL SYSTEM.
365
wife policy purfued, which divides the faireft
portions of the Kingdom into Apanages for
the children of the blood royal, a meaſure
fo long deftructive to the Intereft of other
Countries. (t)
We find then the right of Private War
univerfal throughout Europe, during the
height of the Feudal Syftem; nor were Ec-
clefiaftics lefs eminent for the exerciſe of it
than the Laity. The Clergy were poffeffed
of Baronies in right of their Churches, and
were often perfonally engaged in the duties
which they impoſed. () As the facred
(t) Lancaſter and Chefter were the only Counties Pa-
latine which emanated from the Crown, and were very
quickly reſumed.
(u) The Biſhop of Beauvais was taken in Arms by
Richard I. of England. Upon being claimed by the Pope,
the King ſent his Holiness the bloody Coat of Mail of the
Prelate, and replied in the language of Jacob's Sons, "This
"have we found. Know now whether it be thy Son's
"Coat or no." Upon which the Pope is faid to have
anfwered, that as he was rather the Soldier of Mars than
the Servant of Chrift, he ſhould be confidered as ſuch, and
rauſomed at the King's will. Holinſhed. R. 1.
The Biſhop of Cambray again, on the other fide, was
taken by Philip Auguftus, and the two Prerates regularly
exchanged.
character,
366
OF THE INFLUENCE OF
character, however, exempted them, if they
pleaſed, and at any rate was inconſiſtent with
a martial one, even in a martial age, the
Officer charged with the management of their
Temporalities, fucceeded to this part of them
alfo, and was called VIDAME, or VICE Do-
MINUS. Like the Viſcount, he foon con-
verted his office into a fee, and by becoming
the vaffal of the Biſhop, or Monaſtery, exer-
ciſed the right in his own name. (v)
Having thus given fomewhat at large the
hiſtory of Private War, modified by the Feudal
Syſtem, as part of the Law of Nations during the
earlier periods, it would not be at all irrelevant
(~) Hence Vidame became a Seignory or Lordship,
and was very lately attributed to feveral French Noble-
men; as the Vidames of Chartres, of Amiens, &c. who
held their lands of the Biſhops of thofe places. See Paf-
quier Recherches de la France, 8. 5. Du Cange. voc.
Advocatus. Du Mont. 1. 93. & Differt. 24. fur Join-
ville. p. 331.
The famous Thomas a Beckett, when Arch Deacon of
Canterbury, followed Hen. the II. in an expedition to
Tholoufe, and maintained, at his own charge, 4000
ftipendiary Soldiers, and 1200 Knights, the latter of whom
dined every day at his own Table.
Lyttlet. Hen. II. 2. 161.
to
THE FEUDAL SYSTEM.
367
to our fubject, if we went as largely into the
means by which the cuſtom was abrogated;
and as every work fhould be as complete
within itſelf as poffible, we might be juſtified
in laying it before the reader.
As however many of thoſe means took their
rife from the influence of CHRISTIANITY,
which we intend to treat of feparately, and as
the outlines of them have already been traced
with much ability by Dr. Robertſon, we ſhall
content ourſelves with referring to him, (x)
and reſerve what we have to fay upon it for
another Chapter.
The next great feature of the Law of
Nations which the Feudal Syftem produced,
is that remarkable and intimate connection;
that conftant pretence, and indeed, right to
interfere with one another, which the ftates
of Europe mutually affumed in confequence
of the divifions and fubdivifions into which
they had fallen. The creation of Fiefs and
Arriere Fiefs, over almoſt all the Weftern
(*) Note X. Introd, to Ch. V.
5
countries,
'
368
OF THE INFLUENCE OF
countries, prefent to us a picture of a few
Lords Paramount, of fmall real power, but
great pretenfions; pretenfions which were
multiplied, and whoſe intricacy and miſchiefs
were infinitely extended, when the larger
fiefs came to be portioned out, as they were,
into ten thouſand petty Sovereignties, fub-
ordinate to mediate, as well as immediate
Lords. By this well known, but intricate
fyftem, there was fcarce a fiate then in exiſt-
ence, which could take any public meaſure,
without more or lefs involving the right and
intereſt of ſome other ftate, of which, without
this fyftem, it would have been wholly in-
dependent.—The common rights of mankind
were invaded by it, and perfons poffeffing
particular countries, even though by a royal
title, could not acquire certain other countries
at the fame time, without a breach of Law.
It was thus that, from the time of the
Emperor FREDERICK the Second, who,
as King of Sicily, became the Vaffal of
the Pope, no King of that country was al-
lowed to afpire to the Empire; or, if he did,
he was obliged to renounce his kingdom; (y)
(y) Burigny Hift. de Sicile 2. 25.
a conftitution
THE FEUDAL SYSTEM.
369
a conftitution which three centuries after-
wards, was forcibly pleaded by Francis I. of
France, againſt Charles V. in their celebrated
conteft for the imperial dignity, in which
perhaps we may diſcover the firſt traces of
that famous European fyftem, called the Balance
of Power. (2) We have feen the fame fort
of renunciations in modern times, but they
have been by exprefs conventions, and in
the Spirit of that remarkable policy; theſe
conftitutions, on the other hand, formed
a fundamental law of the two countries, and
were rather in the ſpirit of the feudal cuftoms,
which authorized the Pope, the fuperiour
Lord of Sicily, to prevent his hereditary
Enemy, the Emperor, from aggrandizing him-
felf in Countries fo near him.
A Vaffal could not even marry without
the confent of his Lord, left the inheritance.
might that way pafs to his enemy, of which,
among a variety of examples, there is an
eminent one furniſhed by the reign of Saint
Lewis. The Count of Ponthieu had agreed
to marry the eldeſt of his four daughters,
VOL. I.
(z) Guicciard. ſub. an. 1519.
B b
and
370
OF THE INFLUENCE OF
1
and his principal heirefs, to HENRY III. of
England; the parties had been betrothed, the
young Countefs had already been eſpouſed by
proxy, by the Biſhop of Carliſle, and the Pope
himſelf had guarantied the alliance.
But
notwithſtanding the affair had
affair had gone fuch
lengths, the King of France, as fuperiour
Lord of Ponthieu, interfered upon the ground
of the feudal law, and fpoke in fo high a
tone (a) that neither his vaffal, nor Henry,
thought proper to go through with the treaty.
Upon the fame principles it was fairly im-
puted as a cauſe of complaint to Charles, the
laft Duke of Burgundy, that he had married
the Sifter of the King of England, the enemy
of France, of which he held. (b) When we
confider the immenfe power, and the in-
dependent Sovereignty of the Duke of Bur-
gundy, in all other refpects, (one of the
greatest then known,) we muſt be forcibly
impreffed with the effect of fuch cuftoms.
It is remarkable, that there was no
Monarch in Europe, who, in the earlier
ages, enjoyed abfolute independence, and
(a) Velly. 2. 348.
A
(4) Commines.
I
did
THE FEUDAL SYSTEM.
371
did not owe fealty to others for fome part of
For though there might be
his dominions.
many Lords Paramount, in reſpect to the
greater part of their territories, yet they mu-
tually did homage to one another for other
parts of them. Thus, Scotland owed homage
to England, for Cumberland, and Hunting-
don; England to France, for Aquitaine and
Normandy; France to the Pope, and the
Empire, for Naples and Milan; the Emperors
to the Empire, for their hereditary poffeffions;
the King of Spain to the Pope, for Sicily and
Naples; Sweden to Denmark, Denmark again
to the Empire, and fo on through an endleſs
circle. The form of this homage was the
moſt abject humiliation that freedom could
fubmit to; or that pride could undergo.-
The poffeffor of a fief, let what might be his
power in other parts, was bound within a
year after poffeffion, to appear before his
Lord, unarmed, ungirt, bareheaded, kneeling,
and his hands held in a fuppliant manner,
as if in the act of adoration, between the hands
of the ſuperiour, who was feated. In this
poſture he was obliged to repeat the following
oath: "From this day forth to my laſt, I be-
66 come your man, of life, and limb, and earthly
Bb 2
“honour;
}
372
OF THE INFLUENCE OF
"honour; I will be true and faithful to you
" and yours." (c)
This degrading ceremony was continually
brought into practice, and is well deſcribed
in the cafe of EDWARD III. Summoned to
do homage to PHILIP of VALOIS, as Duke
of Guienne, that Monarch received him at
Amiens, at the head of all the nobility of
France, preceded by the Kings of Bohemia,
Majorca, and Navarre. As foon as he ap-
proached the throne, the Great Chamberlain
commanded him to take off his Crown, his
Sword, and his Spurs, and to fall upon his
knees on a cuſhion prepared for him; a cere-
(c) Novus quifque in hæreditatem feodalem fucceffor,
tenetur infra annum fe domino fiftere, atque Inermis,
Diffinctus, Nudus Capite et provolutus in genua, fuppli-
cibus item manibus, inter fedentis domini manus compre-
henfis, eum (velut adoraturus) in hunc modum alloqui.
"Devenio homo vefter ab hac die in pofterum, de vita,
"de membro, et de terreno honore verus et fidelis vobis
&c. &c."
C ero,
From the words of this Oath, Homo vefter, Sir Henry
Spelman derives the word Homage, and not from OMAN
juro, as fome Critics have done.
See alfo Coke Litt. 60.
Spelm. Glofs. voc. Homagium,
mony,
THE FEUDAL SYSTEM.`
373
mony, fays Velly, very humiliating for a foul
fo proud. He obeyed, however, though it
was eaſy to trace on his countenance, the
marks of the diſguſt he felt, at being forced
to humble himſelf fo low before fuch il-
luftrious witneffes. (d) The ceremony,
had continued the fame for above four
hundred years; and we must not forget while
on the ſubject, the famous account of ROLLO,
the proud Conqueror of Normandy. When
Charles the Simple granted him that extenſive
Dutchy to hold in fief, he was called upon,
according to the practice of the times, to do
homage for it. They had infinite pains to
perfuade him to hold his hands within thoſe
of the King; but when mention was made of
falling upon his knees, and kiffing his foot,
(for fuch was the practice of that time,) he
fwore that he would never bend his knee
before any one. It was agreed that one of
his officers fhould do it for him; and whether
from aukwardneſs or defign, in lifting up the
foot to kiss it, he overturned the Monarch,
before whom the Law had thus bound him
to humble himſelf. The ftyle alſo in which
(d) Velly. Hift. de Fr. 4. 398, 399.
B b 3
fubordinate
1
374
OF THE INFLUENCE OF
fubordinate Sovereigns were fummoned to do
this homage, was equally humiliating. They
were commanded" to lay all other affairs
"afide, and be with their Lord wherever he
might be within the country," and by any
day he choſe to appoint. (e)
CC
But while Sovereigns were thus fettered
with reſpect to one part of their Dominions,
they might be in a ſtate of the moſt abſoluté
freedom with reſpect to all the reft; they might
indeed, probably, be entitled to receive the fame
fort of oaths from the very Lords to whom
they themſelves had fworn; the whole de-
pending upon the various tenures of their
various domains. It was thus that the Em-
perors and the Popes were for fome time.
fituated; the former doing homage to the
latter for the Kingdom of Sicily, and at the
fame time claiming fuperiority over him in
right of the Empire. In fuch a ſtate of
things, it is obvious that there must have
been a perpetual oppofition of rights and pre-
tenfions; and as the ideas of men, in thoſe
days, were not the moſt perfpicuous, and the
(e) Rym. 2. 604.
law,
THE FEUDAL SYSTEM.
375
-
law, in its purity and fimplicity, was feldom
allowed to take its courfe, even in points that
were well underſtood, we must not be fur-
priſed to find much confufion in the daily
practice of the times. Accordingly, though it
often might happen that rights were afferted,
and hoftilities commenced, by a Lord Para-
mount as fuch, and in his own Dominions;
yet if he poffeffed other dominions in vaf
fallage, the diftinction was feldom, if ever,
admitted. Indeed, as the vaffal had fworn to
defend his Lord againſt all enemies whatſo-
ever, without referring to any particular cafe,
he could not confiftently become his enemy
himſelf, even though it fhould be in parts
where he ceafed to be a vaffal. At all events,
even on the fuppofition that his own perfonal
fervice could be got over, and, that his
own immediate vaffals might follow his
ſtandard, yet one part of his Subjects might
then be perpetually called upon to fight againſt
another part; a fituation of fuch intricacy,
and which demanded fo many facrifices, that
we muſt not wonder if the Sovereigns of that
time incurred forfeitures, and were often fairly
declared Traitors, for doing that which, in
their other capacity, they were legally per-
B b 4
mitted
376
OF THE INFLUENCE OF
mitted to do. Here, therefore, the niceties of
the feudal law, evidently transferred them-
felves into the Law of Nations, and begat an
endleſs maze of trouble and confufion, which
brought the wars of thoſe times almoſt always
to a ſtate of civil war.
Examples of the above obfervations are to
be found in every page of the hiftory of
the earlier ages, and perfonal contefts and
hatred among Sovereigns, the conſequence of
having their paffions thus called forth, were
the natural refult of theſe cuſtoms. To
produce them were almoſt endleſs, and to the
attentive reader of hiftory, unneceffary; thofe,
however, which may be felected in proof of
the points touched upon, may be divided into
two claffes; namely, thoſe which concern the
intercourfe between fuperiour and vaffal, on
matters immediately arifing between them-
felves; and thoſe in which the fuperiour
interfered, in order to do that juftice, and
afford that defence to his vaffals, againſt one
another, which he was bound to do by the
ſyſtem which is the fubject of our Com-
mentary,
1
The
THE FEUDAL SYSTEM.
377
The latter clafs prefent to us the picture of
a common Court, or high Tribunal, in which
Sovereigns, fuch at leaſt as acknowledged one
head, were heard, and their caufes tried by
other Sovereigns like themfelves. An ad-
mirable inftitution! which, had it been að-
miniſtered, or could it have been preferved to
this day, in all its purity, would have often
ſpared thoſe cruel appeals to the fword, which
have fo frequently fwept away thouſands from
the face of the world.
As the two great Kingdoms of France and
England were more implicated in theſe feudal
difficulties than any other, from the immenſe
fiefs poffeffed by the latter on the continent;
the cafes which might be produced, would
naturally be moſt fought for in the hiſtory of
their tranſactions, even if we were not, as
we are, more intereſted from birth, and the
better means of information, to examine them.
I fhall, therefore, in the following examples,
confine myſelf chiefly to the old ſtory of the
PLANTAGENETS and CAPETIANS.
1
In the year 1200, John, King of England,
was declared guilty of felony and parricide,
by
378
OF THE INFLUENCE OF
by the Parliament of France, for the murder
of his Nephew, Prince Arthur; his proceſs
was regular and formal; he was told that
whatever might be the fentence it would be
executed, and, upon default, was convicted,
attainted, condemned to death, and declared to
have forfeited his lands. (f)
In this, PHILIP interfered in confequence
of appeal; there was no quarrel between him
and JOHN. The appeal, however, which
brought on the war, was from others as well
as from the kindred of ARTHUR.
The Story of that unfortunate Prince is
well known; the injuries of HUGUES LE
BRUN are not. John, being at Paris, was
invited to the nuptials of that Nobleman with
Iſabel d'Angouleme, and was fo ftruck with
her beauty, that he carried her off in the way
to the church, and married her himſelf.-
Hugues flew to arms, together with his kin-
dred, who were illuſtrious and powerful, but
being foiled by the tyrant, they appealed to
Philip, who fummoned him before his Peers.
(ƒ) Mat. Par. fub an. 1202. Velly. 2. 194.
According
THE FEUDAL SYSTEM.
379
According to the feudal law PHILIP was right;
and had the natural courſe of things taken
place, without alteration from other external
circumftances, it fhould feem that England
ought to have remained neuter, and feen its
king puniſhed.-But in fwearing allegiance,
England had fworn to defend him againſt all
enemies, and in all cafes whatſoever, and it
had no right to enquire into the juſtice of
PHILIP'S proceeding. Here then is an
eminent effect of the feudal fyftem upon the
Law of Nations, in furniſhing caufes for war.
The hoftilities in which the two nations were
thus involved, lafted fifty-fix years. (ƒ)
In the reign of HENRY III. the viſcount
of Bearn, a vaſſal of France, having a dif-
pute with Henry, as Duke of Guienne, about
the property of certain Caſtles, threatens to
complain of him to the king of France as his
fuperiour lord.
The form of Summons to the Kings of
England to do their homage, was conftantly
regulated, and Philip the Hardy, poffeffed
(f) The ſtory of Hugues le Brun, is in Velly, 2. 192.
fuch
380
OF THE INFLUENCE OF
fuch power in Guienne, that he even buik
cities there, and of his own authority abo-
liſhed, at the requeſt of the English them-
felves, certain cuſtoms which he conceived
to be unreaſonable. (g).
In the year 1292 the English fubjects of
EDWARD I. quarrelling with the French in
Gafcony, war was kindled between the King-
doms. As King of England, Edward could
only be purſued in the uſual mode of
hoftility; as Duke of Guienne, he was cited
like a common fubject to anſwer before his
Lord; and though the greateſt prince of his
time in power and talents, the Citation was
fixed on the Gates of a Town in the Agenois,
and not appearing, his Dutchy was confif-
cated. (b) It is remarkable alſo, that in the
inftrument of citation, he is called King of
England, where he was paramount, and not
Duke of Guienne, where he was really Vaf
fal. (i)
(g) Velly, 3. 129.
(h) Ib. 4. 33, 42.
(i) Rymer, 2. 617.
Similar
THE FEUDAL SYSTEM.
38I
Similar to this, is a kind of Writ directed
by Lewis Hutin in 1314, to Edward II.
King of England, commanding him upon the
fealty and love which he bears him; to arrest
the Flemings his enemies wherever he could
find them. (k) He makes ufe in particular of
the word, Detroitz, which it ſhould feem
had reference to the narrow feas of England
where Edward was paramount; no mention
is made of Aquitaine where he was Vaffal,
except in the direction of the Writ, which is
addreſſed to Edward, fimply, " King of Eng-
❝land and Duke of Aquitaine." It is true,
there was an alliance between the Kings, by
which enemies were mutually to be banished,
but the word Fealty, and the mandatory ftyle
of the whole Writ fhew, that if this was not
really the Law and cuftom upon the fubject, the
ideas upon it were at leaſt much confounded.
In the courſe of the war between EDWARD
I. and PHILIP, there is another circumftance,
taken notice of by the French hiſtorians,
which if they are right in their notions of the
cuſtoms of' that time, is of confiderable im-
(k) Rymer, 3. 488.
portance
382
OF THE INFLUENCE OF
portance in the hiftory of the Feudal Law of
Nations.-Edward fuffered Philip to obtain
an eaſy conqueft over Guienne, the homage
for which was the cauſe of contention, in
order as it is ſaid, that if he got pofeffion of it
again by force of arms, he might then enter upon
it in full fovereignty by right of Conqueft. (1)
Accordingly, he afterwards fent an Embaffy
to Philip, telling him that he thenceforth re-
nounced him as his fovereign, and held him-
felf free from all homage. If this was re-
ceived law, it points out the means by which
vaffals, who were themſelves powerful Lords
Paramount in other places, might change
their vaffallage into full fovereignty. The
Engliſh hiſtorians relate the matter differently,
and upon the peace, Philip ftill remained
Paramount of Guienne. Thefe circumſtances
however do not affect the reaſoning, provided
the obfervation of the French writers is to be
taken for law.
About forty years afterwards, EDWARD III.
lays claim to certain eftates in Guienne. Had
(1) Guillaume de Nangis. & fee Velly's Comments.
there
4.43.
THE FEUDAL SYSTEM.
383
there been no feudal Court, he muſt have
afferted his cauſe by force of arms;
it was
agreed upon however, that it ſhould be regu-
larly brought before the parliament of France,
which for that purpoſe was to confift of fix.
peers at leaſt. (m)
But nothing exemplifies the effect of the
feudal Law more, than the cafe of EDWARD
the BLACK PRINCE. The fortune of France
and Spain had often funk before him; he was
at the head of half the former kingdom in Fief,
which was thus divided into two nations;
and he was fupported by the whole force of
England; yet upon complaints made by fome
weaker vaffals, he was fummoned in the
plenitude of his power, from Bordeaux to
Paris, to anfwer for the conduct which "out
of weakness of counſel and want of knowledge”.
he had chofen to purfue. (n)
tr
In the ſame ſpirit of the law, was the cele-
brated CHARLES the BOLD treated above a
(m) Peers of Edward, as a Vaffal of France, Velly. Hift.
de France, 4. 457.
(2) Froillart, v. I. ch. 247.
hundred
384
OF THE INFLUENCE OF
1
hundred years afterwards, by Lewis the
Eleventh. That monarch held an affembly
of Notables at Tours, to hear complaints
againſt him; and he was judged guilty of leze
majefty, attainted, and his procefs fent to
the Parliament of Paris, who by a common
Ufher of the court, fummoned him from
Ghent, the feat of an Empire equal to France
itſelf. (0) Many of the provinces which gave
Lewis this right to interfere, were held till
very lately by the Houfe of Auſtria in com-
mon with the reft of Flanders-we may
imagine the furpriſe and indignation which
fuch a proceeding in modern times would
have occafioned.
The hiftory of Flanders during the ages
before us, contains many cafes of the fame
nature with thoſe related above, (p) and
wherever the feudal fuperiority of France ex-
tended itſelf, thofe rights were perpetually
exerted. In 1355, Charles the Bad, King
of Navarre, but alfo Count of Evreux, was
arreſted at Rouen, thrown into prifon, in-
(a) Commines, L. 3. ch. 1.
(p) Du Mont. Corp. diplom. univ. 1. paffim. Leibnitz.
Codex Dip. 95-
terrogated
THE FEUDAL SYSTEM.
385
terrogated like a common criminal, and
threatened with death. (q). If war had not
exiſted at the time between France and
Navarre, we may fuppofe that it would have
been the immediate confequence, and thus
from the perpetual confuſion of authority
between dependent, and independent ſtates,
the one might legitimately be confifcated, in
confequence of the quarrel of the other; the
power of the laft, was often forced into
action, in confequence of the legal delin-
quency of the firſt.
The fpirit of theſe cuftoms as has been
obſerved, was not however, confined to
France: In the conteft with Scotland, when
John Baliol confented to do homage to
EDWARD I. that monarch made him feel his
dependence in a manner that would ſtartle
the weakest crowned head of modern times ;
and Rymer has preferved no leſs than fix
fummonſes to him to appear at Weſtminſter,
in order to plead like any other fubject in
the common courts of the Realm. (r) In
(4) Froiffart, anno. 1315.
(r) Rym. II. 603, 605, 606, 608, 615, 616,
VOL. I.
Gic
this,
386
OF THE INFLUENCE OF
this, without entering into any unneceffary
queftion, (which has produced fo much
animofity between the Scotch and Engliſh
writers) whether this fuperiority was ufurped
or not, it is fufficient to obferve, that, (his
title being allowed,) he did no more than
what the then Law of Nations, operated upon
by the feudal Syſtem, permitted him to do;
and Baliol, upon this principle, however in-
dignant, did not refufe to comply.
The Emperors were for ever engaged in
conteſts of the ſame kind, involving the ſame
train of difficulties. Henry of Luxemburg
underſtood and purfued them; his inter-
ference in the affairs of almoft every Town
in Italy, was founded upon them; and the
Crown of Naples was once confiſcated in full
Diet, in conſequence of feudal defaults. (s)
At another time, the Pope who pretended
to the right of homage from this crown, knew
how to defend his royal vaffal, and excom-
municated and thereby effectually repulfed
the attempts of the Emperor Oтно upon it,
(s) Heifs. Hift. de l'Empire, 1. 149, 50, 51.
رقم
during
!
1
{
R
THE FEUDAL SYSTEM.
387
during the beginning of the reign of the
famous Frederick II. (t) The German Cons
ftitution indeed at this day, is pregnant with
the genius of this Law of Nations; and
had the feudal polity continued in all its
vigour, the States of Europe would probably
wear an appearance, not very unlike in its
effects, that which the Germanic Alliances at
this moment preſent to us.
At the fame time that the operation of the
feudal fyftem upon the cuſtoms of the Sove-
reigns of Europe, was to introduce a kind of
high Court in which many cauſes of material
importance were determined; the Vaffals who
thus bowed to the authority of their Superi-
our and their Peers, poffeffed privileges in
their turn, which often influenced the turn
of public affairs. They were Judges, as
well as Suitors, in the Lord's Court, and for
the moſt part claimed the right of oppoſing,
if they pleafed, any alienation of his fiefs
which the Lord was inclined to make. Thus,
they became very important parts of the execu-
tive Government of the State, and hence it is,
that in almoſt all the old Treaties of peace,
(t) Heifs. 1. 18. Burigny Hift. de Sicile, 2. 22.
Cc 2
the
-388
OF THE INFLUENCE OF
the ratification of the greater Barons of the
Country, was generally neceffary, and appears in
all due form together with the fignature of the
king himſelf.-The fame privilege no doubt
might be, and is enjoyed in fome countries,
without any reference to the feudal ſyſtem.
But this is rather the confequence of par
ticular conftitutions, than of the Law of
Nations; and in thofe cafes, the particular
conftitutions muſt be ſpecified in order to
come at the knowledge of the cuſtom. In
the cafes before us, to ſay that the feudal fyf-
tem prevailed all over Europe, is to fay at
once that theſe privileges were parts of the
European Law of Nations,
There was another part of the feudal Cuf
toms, which had fo immediate an effect upon
the rights of ſtates, (and it remains indeed, in
many parts, to this day,) that it would be
hardly poffible in this place to pafs it by,
This was that famous right of the ſupreme
Sovereign to all thofe fiefs, whatever might
be their extent or power, which were left
without a head, when the reigning family
failed for want of pofterity. In this caſe the
fief reverting to the Lord, he was entitled
either
THE FEUDAL SYSTEM.
389
either to reunite it to his crown, or he
granted it out again to other vaffals, by the
ceremony of Inveftiture.
No length of poffeffion could bar this right
of the Lord, or transfer, confiftently with
law, the power to grant the fief by will,
(though fuch power in other
power in other cafes pre-
vailed) or to elect a new Sovereign, by
the ſubordinate vaffals. But, as may be fup
pofed, the claſh of intereſts among contend-
ing States, was perpetual, and the intricacies
of Law without end, when thefe claims were
brought forward. The fame difficulties have
often attended the Chanceries and Parliaments
of particular kingdoms, according to their
municipal conftitutions; but thefe, arifing
entirely from the feudal law, which was the
fame or nearly the fame, all over the Weſtern
nations; thefe fuits, were brought forward,
if I may fo fay, in the Chancery of Europe
itfelf.
*
The two Kingdoms of France and Ger-
many, being the two great powers into which
the integral empire of CHARLEMAGNE
branched, and from which it put forth
forth many
freſh
390
OF THE INFLUENCE OF
freſh fhoots; the influence in queftion was
moſt felt among the kingdoms and ſtates de-
pendent upon them. I thall felect a very few
examples of it, in proof of the above obferva-
tions.
CHARLES Count of Anjou, the famous
Conqueror of Naples, in 1246, married
BEATRICE, youngest daughter of the laft
Earl of Provence, who willed that the fhould
fucceed to the fovereignty, before Margaret
her elder ſiſter, the Queen of Saint Lewis.
While that monarch lived, Margaret was
forced to acquiefce in this difpofition. Upon
his death however, fhe prepared to affert
what the conceived to be her rights; and in
this ftate of things the Emperor RODOLPH,
of HAPSBOURG, took upon himſelf to judge
of the difpute. He did this as Lord Para-
mount, the earldom of Provence being a fief
of the old kingdom of Arles, which had been
itſelf a fief of the Empire, and at that timë
reunited to it, and in confequence of this
right, he gave the inveftiture to CHARLES.
Whoever confiders the remotenefs of the
firſt Emperors who were fovereigns of Pro-
vence, and the chain by which this right of
Rodolph
THE FEUDAL SYSTEM.
391
न
Rodolph proceeded, will have a very com-
plete idea of the point in queſtion. Provence
was the acquifition of Charlemagne in the
eighth century; his grandfon Charles the
Bold being Emperor, granted out the King-
dom of Arles to Bofon, from whofe family
the Earldom paffed by marriage to the Counts
of Barcelona. Upon the failure of their line
in the thirteenth century, the then Emperor,
having all the rights that iſſued from Charles
the Bold, exercifed this act of Sove-
reignty. (u)
Two centuries afterwards, and in another
country, upon the failure of the male line of
the laſt Houſe of Burgundy in the perſon of
Charles the Bold; Lewis king of France im-
mediately feized upon Artois, and Burgundy,
as fiefs of the Crown-the wars of France and
Auftria which have fo long deſolated all
Europe, and which at this moment ſhake it
to its centre, arofe in part from this fource.
A more important, becauſe a more intri-
cate example, is afforded by Milan-the
(u) See Henault, Hift. Chron. de Fr. 1. 238.
1
_I
quarrel
392
OF THE INFLUENCE OF
quarrel about which was endleſs betweétt
CHARLES V. and FRANCIS I. The rights
of Francis were derived to him from Lewis
XII. who while duke of Orleans, had mar-
ried Valentine, the laft of the Visconti family,
the male line failing. The right was quef-
tioned merely becauſe the contract of fuc-
ceffion, in virtue of the marriage, had not
been confirmed by the Emperor, to whom
the Dutchy regularly efcheated. Lewis how-
ever, had afterwards held it by an actual in-
veftiture, which again was to convey the
right to his pofterity, only in the cafe of the
marriage of his daughter Claude with Charles
V. then duke of Auftria; which, not having
taken place, the right ftill returned to the
Emperor-and hence aroſe another cauſe of
the perpetual contention between the two
rivals. (w)
I am fenfible that in thefe cafes, and many
others that might be adduced, I may almoſt
appear to be relating, what rather belongs to
the JUS PUBLICUM, as founded upon par-
T
(w) Guicciard, 1492, 1521. Heifs. 1. 215. Note 6.
ticular
THE FEUDAL SYSTEM.
393
ticular conventions, than the general law of
Nations; but accurately ſpeaking, theſe con-
tefts did not arife in confequence of any par-
ticular Treaty, or Renunciation between two
States, but from the mere effect of the feudal
Law, known all over Europe, and therefore
according to us, the law of Nations itfelf.
In many other points that have been touched
upon, this reaſoning muſt be alſo underſtood
to apply. The Law of Nations, is the law
for a particular clafs of ftates; writers upon
the fubject ſay (and very properly) Sovereign
States. But the fovereignty of theſe ftates,
according to themſelves, admits of much
modification; fome being Tributary, and
fome bound by unequal alliances. In general,
however, when they have been entruſted with
the free adminiftration of public affairs, and
have had the power of making treaties, or
the rights of war, or of embaffy, they have
uniformly, by the writers on the fcience, been
confidered as forming part of the fovereigns
of the world.But the feudal vaffals, how-
ever bound to obey their Lords Paramount,
in many points, were precifely in this fitua-
tion; and they are therefore actually claffed
Dd
VOL. I.
among
394
OF THE INFLUENCE OF
1
among States in the various codes of the Law
of Nations. (x)
Indeed whoever recollects that John, and
Henry III. were Feudatories of the Pope, and
performed fervices as fuch, (y) muft either
deny that thoſe Kings of England were Sove-
reigns; or admit that all the Barons of
Europe were fovereigns alfo. Whatever con-
cerns them therefore, muft neceffarily be
related, and the whole fpirit of the feudal
law, as it governed the intercourfe of fuperiour
and vaffal, or of vaffals among one another,
becomes alſo the ſpirit of the Law of Na-
tions. In this opinion (though he has rather
hinted his fentiments, and by way of com-
pariſon, than laid down the point at large,)
I am borne out by, perhaps, the greateſt of
our antiquaries.
"The King," fays Sir Henry Spelman,
"divided his territories in different ways;-
"Provinces to Dukes, Counties to Earls,
(x) Grot. de J. B. et P. 1, 3, 2. Mackenzie Preced. of
Nat. 12. Wicquefort de l'Ambaſs. 25, 39. Vattel. I. 4г.
(v) Hume, 2. 15.
"Caftles
5
THE FEUDAL SYSTEM.-
395
"Caſtles and Signories unto Barons; render-
ing unto him, not ex pacto, vel condicto,
CC
(for that was but cautela fuperabundans)
"but of common right, and by the law of
"nations; (for fo I may term the feudal la
"then to be, in our Western orb,) all feudal
"duties and fervices due, &c. &c. though
no word were spoken of them.” (x)
Poffibly this reafoning may be deemed
unfatisfactory by fome; to others it may
feem unneceffary; but as this work
may fall
into the hands of perfons not led by profef-
fional habits to confider this part of the fub-
ject; by them it will not be thought an in-
trufion; and I have judged it the more necef-
fary to diſcuſs the point, even at the hazard
of being thought prolix, becauſe I would not
appear from attachment to a favourite idea
or ſyſtem, to introduce into a treatiſe of law,
any thing not warranted by argument and
fact.
(z) Spelman of Parliaments, ad init.
!
END OF THE FIRST VOLUME.
ERRATA OF VOLUME I.
for is, read are.
laft, for Bet. read Bel.
8
Page. Eine.
21 for june, read jure.
15
24
for autan, read autant.
21
8
25
106
7
133
19
133
9
143
21
150
for Savigifm, read Savagiûn.
for Turk, read Turc.
for is, rend was.
for XV. read XIII.
7
6 for accorded, read awarded.
165 9
175
for Knights Templars, read Knights of the
Teutonic Order.
laſt, for aterna, read æterna.
209 21 for eruption, read irruption.
214
220
222
226
227
4 for Altila, read Attila.
21
dele ()
19 for Alarie, read Alaric.
20
for Genferie, read Genferic,
15 for State, read Eſtate.
22
for Chilperie, read Chilperic.
13 for Secti, read Sancti.
12
250
368
I
for mutilation, read mutilations,
for prefent, read prefents,
685
ARTES
LIBRARY
VERITAS
ENTER
OF THE
UNIVERSITY OF MICHIGAN ||
FROM THE LIBRARY OF
Professor Karl Heinrich Rau
OF THE UNIVERSITY OF HEIDELBERG
PRESENTED TO THE
UNIVERSITY OF
OF MICHIGAN
BY
Mr Philo Parsons
OF DETROIT
1871