The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

III. An example in taking of men Prisoners:

A branch of the execution of this right was that which the Athenians called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the making men Prisoners; concerning which the Attick Law was this, If any man had been by forcible assault killed by a Stranger, the next of kin had a right to take any three men Prisoners, but no more, and to detain them until the Murderer were either punished, or delivered up to be punished. Hence we may perceive, That there is a kind of incorporeal right of Subjects (that is, a liberty to live where, and to do what they please) engaged for the debts of every Society, which ought to punish such of their own Society as shall dare to injure those of another Society; so that any of the Members of that Society that shall neg∣glect or refuse to do it, if taken, may be held in bondage until that Society do what they ought; that is, until they either punish or deliver up the Offender. For although the Egyptians (as Diodorus testifies) did maintain, That it was not just to imprison a man for debt; yet is there nothing in it repugnant to nature. And the general practice not only of the Grecians, but of most other Nations, is sufficient to warrant the contrary. Ari∣stocrates, who was Contemporary with Demosthenes, demanded, That a Decree might pass, That whosoever should kill Charidemus, should be taken away from what place soever; and that whosoever should make resistance, should be held as an enemy. In which De∣cree Demosthenes observes these errours: First, that Aristocrates did not distinguish be∣tween the putting to death of Charidemus justly or unjustly, seeing that possible it was that he might deserve death; next that he did not require that judgment should first be de∣manded against him: And thirdly, that not they amongst whom he should be killed, but they that should receive the murtherer being escaped into protection should be prosecu∣ted as enemies. Demosthenes his words are to this purpose, If a murther be committed a∣mongst any people, and they refuse either to punish or to deliver up the murtherer, the Law al∣lows the apprehension of three men; but Aristocrates leaves these men untoucht, and not so much as mentions them; but would have those persecuted as enemies who have according to the Com∣mon Right of Nations concerning suppliants received him that hath escaped by flight, for so I put the case, into protection, unless they deliver him. The fourth thing that he reproves, is, that Aristocrates would instantly bring it to an absolute War; whereas the Law requires only the detention of three men. Of these four exceptions, that Demosthenes takes against Aristocrates his Decree, the first, the second, and the fourth are not altogether without reason; but for the third, unless restrained to the sole event of the murther done, either accidentally, or in the defence of himself, I cannot perceive why it should be mentioned, unless it were like an Orator for arguments sake, rather than truly or justly: for as we

said before,* 1.1 That Right which all men challenge of receiving and defending Suppliants, doth concern those only whom Fortune, and not their own crimes have made miserable; for otherwise there is the same Law for those amongst whom the crime is committed, as for those who resuse either to punish or deliver the guilty. And surely either the Law it self cited by Demosthenes hath through custom been thus interpreted, or against such cavils was afterwards more liquidly exprest; the truth of one of these, none will deny, that reads that of Julius Pollux,* 1.2 whose words are these, The taking of men prisoners is then law∣full, when a man having demanded Homicides, (who have fled for safety to others) cannot re∣ceive them: For the right of apprehending three men lies against those, who having received male∣factors into protection, refuse either to deliver them, or to punish them according to Law. The like we find in Harpocration, The Right of taking prisoners is a Right to snatch away some men from some other City: For it was an ancient custom against such Cities as received Male∣factors, and refused either to punish them, or to deliver them to be punished, to make use of this Right of Pignoration. The like may be done by any City whose Citizen hath been mani∣festly and injuriously taken away and detained from them. Thus we read, that at Car∣thage there were some that opposed the taking of Ariston the Tyrian prisoner upon this ground,* 1.3 That the like would be done against the Carthaginians, both at Tyre, and at o∣ther Mart Towns, where the Carthaginians used to traffick.

Notes

• * 1.1

  Vid. lib. 2. cap. 21. Sect. 7.
• * 1.2

  Lib. 8. c. 6.
• * 1.3

  Liv. l. 34.