exercise of this right is not to be extended beyond what equity and humanity may justify in order to obtain indemnity for the past and security for the future. On the settlement of the terms of peace only so much of the enemy's territory can justly be retained as is necessary for these purposes. The right of conquest gives a just title, to this extent, to the acquisitions made in war, and finally confirmed by the treaty of peace. Contributions may also be levied on the enemy, and that, not only to the extent of an adequate indemnity, but by way of punishment proportioned to the offence. In extreme cases, where the amount of injury is very great, and no other security can be obtained for the faithful observance of the peace, the existing government of the conquered country may be subverted, and the sovereignty united to that of the conqueror. All these extreme rights of war are to be tempered in their exercise. by the consideration that the justice or injustice of the war may be doubtful, and the enemy sovereign may act bona fide in carrying it on, after having carefully examined the question through the counsel of wise and good men.

Victoria concludes this dissertation by laying down three canons or rules of conscience relating to the subject. 1. That the sovereign, in whom is vested the right of making war, not only ought not to seek for occasions of hostility, but as far as in him lies, to live at peace with all men, according to the precept of St. Paul to the Romans; all men being our neighbours, whom we are bound to love in the same degree as ourselves, and inasmuch as we have a common lord at whose tribunal we must render an account. Nothing therefore but the strongest necessity can justify a resort to arms in order to obtain the redress of injuries. 2. War being undertaken for a just cause, is to be prosecuted not to the utter destruction of the enemy, but in order to inflict upon him such an amount of evil as may be necessary for the defence of the state and obtaining a secure peace. 3. Victory being once obtained is to be used with moderation, and Christian modesty. The conqueror is

bound, in determining the amount of satisfaction due to his own nation, to consider himself as an impartial judge between the two belligerent states. He is the more bound to this rule of moderation inasmuch as wars among Christians are generally to be attributed to the misconduct of rulers. Subjects take up arms for their prince confiding in the justice of his cause, and most unjustly suffer for the faults of their superiors. As says the poet :

Quicquid delirant Reges, plectuntur Achivi.

Besides the works connected with theological casuistry, Balthazar Aya number of practical treatises were also published about ala. this period by Spanish and Italian writers, several of whom are cited by Grotius.a Spain, under Charles V. and Philip II., having become the first military and political power in Europe, maintaining large armies and carrying on long wars, was likely to be the first nation that felt the want of that more practical part of the law of nations which reduces war to some regularity. Among the earliest of these is a treatise by Balthazar Ayala, judge advocate to the Spanish army in the Netherlands, under the Prince of Parma, to whom it is addressed in a dedicatory epistle from the camp before Tournay in 1581. This work is divided. into three books, the second of which relates exclusively to military policy, and the third to martial law. In the first, the author treats of the laws of war as a branch of the law of nations, with a continual reference to examples drawn from Roman law and Roman history.b

The first chapter expounds the received forms of declaring war, and other belligerent ceremonies, which the author deduces from the Roman fecial law, and without the observance of which no war was deemed just by that people. The second chapter treats of the just causes of war. Ayala

De J. B. ac. P. Proleg. 37, 38.

b Balthazaris Ayala, J. C. et Exercitus regii apud Belgas supremi Juridici, de jure et officiis bellicis, libri iii. Antverpiæ, 1597, 12 pp. 405.

concurs with Victoria in attributing the authority of declaring and carrying on war to the supreme power of the state. War is just when undertaken for the defence of the state, its ts/ subjects, its property, its allies, and for the recovery of persons or things unjustly taken by the enemy. Neither rebels nor pirates are considered as public enemies; they are not entitled to the rights of war in respect to captures and postliminy; property in things taken by them is not lost to the original owners. But things taken from them become the property of the captors as if taken from a public enemy. War against infidels, on the mere ground of their religion, is not to be justified; for their infidelity does not forfeit the rights of sovereignty and dominion secured to them by the law of nations; nor was that dominion over the earth given originally to the faithful alone, but to every rational creature. Nor can such a war be sanctioned by the authority of the emperor or pope. Not by the authority of the emperor, for he is not "the lord of the world ;" nor by that of the pope, for he has neither temporal nor spiritual dominion over infidels, and it does not belong to the church to punish infidels who have never received the Christian faith. But if they have once received it, and afterwards endeavor to prevent the propagation of the gospel, they may justly be coerced by war like other heretics. In all these cases the subject is bound to submit his judgment to that of the sovereign, who alone is responsible for the justice or injustice of the war. A war may be just in a legal sense, even when not founded on a just cause, since there is no sovereign arbiter between states. That war may be called just which is declared and carried on by the lawful war-making power. Thus Ulpian says: "Hostes sunt quibus publice populus Romanus bellum decrevit, vel ipsi populo Romano : ceteri vero latrunculi vel prædones appellantur." A war thus declared entitles both belligerent parties to all the rights of war.

The third chapter contains a digression upon duels or private combats, which the author condemns as a violation

INTRODUCTION.

of all laws, human and divine. The fourth treats of reprisals against the property of the offending nation, which can only be granted by the supreme authority of the state in which the war-making power is vested.

The fifth chapter treats of things taken in war and of the jus postliminii. Things taken from the enemy in a just war become the property of the captors.) But a distinction is to be made between moveables and immoveables, such as lands and houses, which last are confiscated to the use of the state. And by the laws of Spain, not only lands and houses, but ships of war taken from the enemy become the property of the crown. Even as to other moveables, the right of the captors to appropriate them as booty is restrained by that of the state to regulate the division, reserving to itself a certain share, and distributing the rest according to the respective rank of the captors. Ayala cites the texts of the Roman law, showing that not only things, but persons taken in war, become the property of the captors, and that slavery which did not exist by the law of nature was thus introduced through the law of nations. Among Christian nations, however, an ancient and laudable custom had substituted the practice of ransoming prisoners of war for that of making them slaves. The more ancient usage of reducing prisoners of war to servitude still subsisted at the time when he wrote as between Christian and infidel nations such as the Turks and Saracens. Persons reduced to slavery in this manner recover their liberty on their return to their own country jure postliminii. The original owner is likewise entitled to the restitution of lands and other immoveable property from which the enemy is expelled. The same legal fiction is also applicable to the case of ships and other moveables recaptured from the enemy. As to these last, our author adopts the distinction. of Labeo, "Si quid bello captum est, in præda est, nec postliminio redit." Such moveables as are recaptured before they have been carried intra præsidia hostium are con sequently to be restored to the original proprietor, because

they have not yet been appropriated as booty. Things recaptured from pirates are to be restored, whether they have been carried intra præsidia or not, because a capture by them is wholly void.

The sixth chapter relates to the duty of keeping faith with enemies. This duty is enforced, as usual, by examples taken from Roman history and the precepts of Roman philosophers, such as Cicero, Seneca, and others, who taught that the performance of contracts made with an enemy was not to be eluded under the pretext of duress or by subtle interpretation of the words in order to defeat the real intention of the parties. Such was the quibble of Q. Fabius Labeo, by whom Antiochus, having been defeated, had stipulated to deliver up half his fleet, which treaty the Roman general executed by sawing each galley in halves, and thus depriving the king of his whole navy. So also the Romans destroyed Carthage, which they had stipulated to preserve, alleging that the promise was to spare the citizens, not the city. Our author also mentions the case of the ten Romans captured by Hannibal at the battle of Cannæ, and sent to Rome to negotiate an exchange of prisoners, under a promise confirmed by oath to return if they failed in effecting that object, one of whom sought to elude his engagement by going back to the Carthagenian camp under pretext of having forgotten something, and then pursued his way to Rome. According to Polybius, the senate ordered him to be bound and delivered up to Hannibal. For, as Cicero justly observes, "fraud does not absolve, but only aggravates perjury."d

What has been said refers only to public enemies engaged in lawful war, and not to pirates and robbers, with

Per Carthaginem, quam libera fore promiserant Romani, Carthagenienses intelligi, non urbem et solum.

a Reditum enim in castra, liberatum se esse jure jurando interpretabatur: non recte. Fraus enim adstringit, non dissolvit perjuriam. Fuit igitur stulta calliditas, perverse imitatur prudentiam. (Cic. de Offic. III. 32).