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Publications of the
Carnegie Endowment for International Peace
Division of International Law
Washington
THE
CLASSICS OF INTERNATIONAL LAW
EDITED BY
JAMES BROWN SCOTT
Trustee and Secretary of the
Carnegie Endowment for International Peace
Member of the Institute of International Law
President of the American Society of International Law
DE RE MILITARI ET BELLO
TRACTATUS
BY PIERINO BELLI
Vol. I. A Photographic Reproduction of the Edition of 1563, with an
Introduction by Arrigo Cavaglieri, and a Photograph of a
Portrait of Belli.
Vol. II. A Translation of the Text, by Herbert C. Nutting, with a
Translation of the Introduction, and Indexes.
'This volume with Volume I constitutes
No. 18 of te Tbe Classics of Interna-
tional Law 1 . A list of the numbers
already published is given at the end
of this volume.
A TREATISE OS
MILITARY MATTERS AND WARFARE
IN ELEVEN PARTS
BY
PIERINO BELLI
VOLUME TWO
THE TRANSLATION
i HERBERT C. NUTTING, PH.D.
Late Professor of Latin, University of California
OXFORD : AT THE CLARENDON PRESS
LONDON : HUMPHREY MILFORD
1936
Printed in Great Britain
At the OXFORD UNIVERSITY PRESS
By John Johnson
Printer to the University
CONTENTS OF VOLUME II
PAGE
Translation of the Introduction of Arrigo Cavaglieri . . . . na
Translator's Prefatory Note
Editorial Note
Translation of the 1563 Edition of De Re Militari ei Eello Tractatus, by
Herbert C. Nutting:
Copyright in
Dedication .......... iv
Laudatory Epigrams vii
Parti I
Part II 59
Part III 103
Part IV 115
PartV 135
Part VI 147
Part VII 159
Part VIII 219
Part IX 249
PartX 277
Part XI 341
Index of Authors Cited 349
General Index 359
INTRODUCTION
BY ARRIGO CAVAGLIERI
TRANSLATION
1569.64
INTRODUCTION
I. ACCORDING to the biography published in 1783 by Baron
Vernazza di Ferney, a fellow-citizen of Belli, the latter was born
March 20, 1502, in the little city of Alba in Piedmont. His family,
moreover, was of Alban descent and belonged to the nobility. Little is
known of Belli's youth and studies. It seems probable, however, that
he perfected himself in the study of jurisprudence at the University of
Perugia, where at that time many students assembled, even from
abroad, and the memory still lived of two great masters who taught
there: Bartolus of Sassoferrato and his pupil Baldus. Alberico Gentili,
in his Laudes Academiae Perusinae (Hanoviae, 1605), mentions Belli,
who himself in a Latin discourse published after his death cites Filippo
Decio and Carlo Ruino, professors of law at Perugia, referring to each by
the title dominus meus, an expression which he probably used to signify
maestro.
In 1535, when thirty-three years of age, he was named military
auditor in the armies of the Emperor Charles V, to whom he rendered
important services. When Philip II succeeded his father, he not only
kept Belli in his service, but promoted him to the grade of counsellor of
war, assigning to him a life stipend of four hundred crowns, a sum so
considerable for those days that Belli calls the King omnium regum qui
sunt munificentissimus. In this capacity he served under the orders of
Cardinal Madruzzi, the Marquis of Pescara, and the Duke of Sessa.
By the Treaty of Cateau Cambresis in 1559 Emmanuel Philibert,
Duke of Savoy, recovered from France his hereditary dominions, and
in 1561 among his new counsellors of state he chose Belli, who held that
office until his death. Employed by his prince in the highest offices of
state, Belli was called upon particularly to give opinions on legal
questions of great importance.
The interests of Emmanuel Philibert were entrusted to him in a
parley at Lyons with envoys of the King of France, from whom restitu-
tion of the five forts of Piedmont was sought ; and he discharged his
mission so successfully as to merit the highest praise from his prince,
as is shown by a diploma which the latter issued praising Belli for having
proved himself devoted and faithful, 'more so in adversity than in
times of prosperity'.
Nor did he show less judgement, prudence, and loyalty in the
matter of the kingdom of Cyprus. When Solyman invited Emmanuel
Philibert to recover that kingdom, of which he possessed the hereditary
title, the latter, wishing to confer with his counsellors, called them
together. Most of them, desirous of flattering the vanity of their
12 a Introduction
prince, were disposed to accept the proposal. Belli, on the contrary,
intrepidly argued the opposite opinion and caused it to prevail, showing
himself, as Vernazza says, 'as circumspect in statecraft as he was
rigorous and tenacious in those religious maxims which he had already
expounded in his books and which gave Osasco occasion to laud him as
a most eminent and prudent jurist'. The ideas of Belli on the subject arc
set forth in detail in Part II, chapter xvii, of his work De Re Militari
et de Belloi 'An Christiana Regi liceat auxilio uti infidelis Princifiis'.
Another important commission entrusted to Belli by Emmanuel
Philibert was in connexion with the disagreement between the Duke
of Ferrara and the people of Florence, Modena, and Lucca regarding
the boundaries of their respective territories. This dispute had lasted for
centuries, and those agreements which had been made or initiated were
either broken or had failed. Matters had come to such a pass, indeed,
that the parties to the dispute were on the point of taking up arms.
It was agreed, however, to have recourse to an arbiter who should
inquire into the controversy and give judgement upon it. Elected to
this office, the Duke of Savoy delegated Belli to act in his stead, and the
latter, unable to reconcile the disputants, pronounced sentence upon
the case. It was not easy to induce the Duke of Ferrara and his people
to yield to this judgement, but its acceptance by them was achieved as
a result of the great authority of Emmanuel Philibert.
Besides Belli's principal work, there remain his various minor
writings in the way of skilful argument, especially counsel or opinions
drawn up in connexion with private litigations. In the archives of
Alba there is preserved the original of one of his judgements which he
pronounced in 1570 as arbiter in a boundary dispute between Count
Filippo Roero, the city of Alba, and the commune of Monticello,
Other judgements or legal discussions by Belli were printed by Osasco
in his Consilia swe resfonsa and by Jacopo Mandelli in his Consigli.
Four years after his death there was published one of his Latin
discourses in which he upheld the right of the Duke of Savoy to succeed
to the marquisate of Saluzzo. In the State Archives in Turin, among
the * Spanish Negotiations', is documented all the work to which
Belli devoted himself in 1575 in order that the fortified cites of Santhizl
and Asti in Piedmont might be liberated from the Spaniards, an under-
taking in which the agents who preceded him had been unsuccessful.
This was his final activity. A few days later, on December 31,
1575, Belli died in Turin, where he was temporarily interred in the
Church of St. Augustine. In 1589 his bones were transferred to the
Cathedral of Asti, where a chapel with a cenotaph was erected for him
under the care of his son Domenico, who in his turn first became
ambassador, and then grand chancellor of Emmanuel Philibert.
2. According to Vernazza, Belli's principal work, De Re Militari
Introduction 13 a
et de Bello, was written in I558, 1 that is to say sixty-seven years before
the treatise of Grotius was published and thirty years before the publica-
tion of the writings of Alberico Gentili. The first edition, that of 1563,
was brought out by Franciscus de Portonariis di Torino, a printer of
Venice. This edition is embellished with epigrams in praise of Belli. In
1583, after the author's death, his work, under the auspices and at
the proposal of Menochio and Panziroli, was reprinted at Venice by
l^Francesco Zileti in volume xvi of the great collection entitled Tractatus
\ univer si juris.
^ It was after his entry into the service of the Duke of Savoy that Belli
^ dedicated the treatise to Philip II of Spain. In this dedication Belli states
^ that he does not wish to lay down precepts regarding military architecture
\or the art of war, which subjects he does not intend to treat. Nor is
^Jiis object to compose a book on military affairs, but rather to show what
are, according to principles of law, the just causes of war; what things
are lawful and what are unlawful for princes and leaders of armies in
the conclusion of alliances and in the conduct of military operations;
^\how the captains and even the rank and file should conduct them-
^selves in their relations with an enemy in arms, with prisoners, and
^with merchants and farmers both on their own side and on the enemy's
side; what treatment should be accorded to enemy property, &c. The
treatise, then, is an exposition of the international law of war which
results from the application of the principles of natural law. Belli
states that he regards such a study as not unworthy of his profession,
\and that he was drawn toward it by humanitarian sentiments, by the
\^, desire to render wars less frequent (he laments in noble words the readi-
ness, even for futile motives, to make war) and to curb the abuses, the
devastation, and the rapine of the soldiery. In strong terms he deplores
the excesses which were committed by the military captains of Liguria,
in his own Piedmont: sineulla . . . misericordia. Quod neque *Iurcae
iunt dum bellantur.
Belli's treatise is divided into eleven parts, these in turn being
subdivided into chapters of which there are sixty-nine containing one
fehousand and seventy-four numbered cases or questions. Some parts,
however, consist of but a single chapter. The style is unpolished, rough,
laboured. One is wearied not only by the excess of erudition, indubit-
ably vast and profound though not always aptly employed, but also
by the frequency of citations, by the continual use, as is likewise the
case with Gentili and Grotius, of examples taken from ancient and
modern history as well as of cases encountered by the author himself
in his work as a judge or in the exercise of his office. Then, too, the
intrusion of extraneous questions injures the unity and logical order
of the treatment, for Belli mingled with his doctrine on the law of
1 [So Belli himself also says, infra, p. 280; but see footnote 3 on that page.] ED.
14, a Introduction
nations some problems of a quite different nature which were of
interest to the public administration and to other branches of juris-
prudence. This work, in short, observes Mulas, 1 'examines and deter-
mines all the questions with which it was necessary for a military
auditor to be acquainted, covering a large field of public law in so far
as it influences and modifies the private relations of citizens. Moreover,
Belli does not content himself with expounding doctrine but, uniting
to it practical experience, gives an account of all the cases upon which
he had to pass judgement when he held the office of auditor, consider-
ing each case with reference to the Roman laws and the opinions of the
Doctors; so that his book may be considered a veritable manual of com-
bined theory and practice, necessary to all those who aspired to that office,
then much sought after and difficult to discharge.' This manner of deal-
ing with his subject is probably the cause of a great part of the immediate
success of Belli's work, but it is indicative of an inadequate strictness
of treatment, of an imperfect and insufficient method. The merits of
Belli's work are principally a profound human sentiment, a notable
independence of judgement, a truly singular breadth of ideas consider-
ing the times in which they were set forth and a laudable preoccupa-
tion in founding the solution of every question solely upon the sense
of right and equity.
For Belli the causes of war are summarized under two heads : to
inflict, or to repel, an injury; in other words, war is offensive or
defensive. The injury can be a direct one to the belligerent nation
itself; or it may affect another country to which the belligerent is
bound by a tie recognized by the law of nations, such as that of alliance,
friendship, or federation, Unjust is the war which is not waged for
purposes of defence, for securing restitution, or from necessity. To resist
injury is a right sacred to every people, and nature itself imposes the
obligation to repel violence with violence, arms with arms (Natura ipsa
docemur vim vi et arma armis repellere). It is not merely permissible,
but a matter of duty to take up arms in certain cases : (a) for one's
country, for liberty, for the public safety; (V) for one's own sovereign.
The latter personifies and represents the nation, which thus becomes a
real and living person ; therefore to fight for the sovereign is to defend,
not his person, but the fatherland itself.
Noble principles, these, which bear testimony to Belli's possession
of a profound sense of justice. To whom belongs, he asks, the right to
declare war ? Considering the question apart from the form of govern-
ment, the right to declare war must be considered as an inherent
attribute of sovereignty. It belongs, therefore, to any people possessing
its own laws, the execution of which is entrusted to one among that
people who represents the supreme authority. It is necessary, then,
1 Efisio Mulas, Pierino Belli da Alba, precursors di Grozio (Turin, 1878), pp. 55-7.
Introduction 15 a
that one who declares war should have the lawful power to wage it
(justitia potestatis) as well as a serious and just motive (justitia causae).
Belli considers a declaration of war essential, and even makes the justice
of the war dependent upon it. In only three kinds of warfare can it be
omitted: (i) against pirates, since they are always to, be distrusted. In
their operations the pirates declare war on all humanity and are
considered as in a state of perpetual banishment in which it is lawful for
all to injure and persecute them with impunity; (2) against those whom
the Emperor and the Pope have declared public enemies, because with
that solemn declaration they are considered as beyond the pale;
(3) against the vassals, confederates, or allies of those against whom
war is waged, whenever they lend to the latter effective aid. In every
other case, war initiated without a regular declaration is held, without
further consideration, to be unjust.
Belli requires that between the declaration and the beginning of
hostilities a certain period of time should pass ; the duration of this
interlude he does not determine, but it must be of such length that
the enemy be not taken by surprise, and that he may utilize his means
of defence. There is thus required, Belli states, not only a high principle
of morality, which forbids attacking the enemy by treachery, but also a
chivalrous fairness.
The war must be just, according to Belli, not merely in its origin,
but in all the actions which take place during its course. Although a
war may be entered into for just reasons, it becomes unlawful and unjust
upon being subsequently settled in rancour or a spirit of vengeance.
Unfairness toward enemies is to be condemned, it being lawful for
belligerents to use only those arts and stratagems which do not have
the character of perfidy. Belli severely censures the princes for their
custom of enlisting mercenary forces which fight solely from a desire
for booty.
Prisoners of war are to be treated with moderation. It is unjust
and cruel to abuse them, and to kill one who surrenders himself is a
deed contrary to the sentiment of humanity. Belli calls it infamous
to exercise against a prisoner any kind of cruelty. Unlike other writers,
such as Gentili, who admit of exceptions, Belli does not consent to
limitations of any kind to his humanitarian doctrine.
Children, agriculturists, traders, members of the clergy, and
foreigners are to be exempt from the havoc of war and must be
respected by the belligerents. The ambassadors and envoys of the
enemy, whose rights and duties Belli defines with precision, must also
be treated with particular regard. Not even the leader of the enemy
should be killed when taken prisoner, unless there be unusual circum-
stances which might cause an excess of leniency to result in injury to
the whole nation. It is necessary, however, that the individuals spared
1 6 a Introduction
by the belligerents should not abuse their position. The/ must not
show partiality for any of the contending parties, but must perform
their duties without interfering in the affairs of the war. Otherwise
their privileges lapse.
On the subject of belligerent occupation Belli states that the
inhabitants of the occupied regions must not be considered as enemies,
provided, naturally, that they abstain from all hostile acts and respect
the provisional authority set up in the country. When military forces
are obliged, by the necessities of war, to cross lands privately owned,
they should show great moderation in their conduct ; otherwise it is law-
ful for the proprietor to oppose their passage. Neither pillage nor the
destruction of occupied things should be permitted; nor should the
levying of contributions of any nature be allowed, but, instead, pay-
ment should be made for everything which has to be appropriated
for the needs of the army. On the other hand, the inhabitants of an
occupied province who lend assistance to the invaders are not sub-
sequently to be considered or punished as rebels, because such assistance
is deemed to be extorted by that species of terror which is caused solely
by the fact of occupation.
The right to spoils is valid, according to Belli, as an outgrowth
of the ius gentium. This right extends both to things, which constitute
what is properly called booty, and to persons, whose condition becomes
that of servitude. Prisoners of war among Christian peoples, however,
ought not to fall into slavery, even if the war be waged against the
Emperor. As regards things, Belli distinguishes between movables and
immovables. The former, if taken in the enemy's camp, in which
the seizing of plunder is legitimate, become without further ado the
property of him who has gained possession of them. If, instead, they
are taken in combat, they must be delivered to the commander, who
will distribute them among the soldiers in proportion to the valour
shown by each. Immovables belong only to the prince, who can
neither distribute nor make gifts of them.
With reference to neutrals, Belli advances the following principles,
in order that their status may not be violated by the belligerents : (a)
that it is not lawful to imprison or molest an enemy who is found
in neutral territory; (&) that foreigners in the territory of the belligerent
states should not suffer any injury from the latter; (c) that neutral
territory may not be violated for any purpose incident to the war, as,
for example, for the transportation of prisoners. If such transportation
should be proved, it is to be considered that the prisoner recovered his
liberty the moment he entered neutral territory.
Concerning truces, Belli believes that a very long truce may be
considered, in its effect, as a species of pacific convention ; from which
follows the consequence that hostilities cannot be resumed without a
Introduction 1 7 a
new declaration of war. One belligerent having violated the truce, it
becomes lawful for the other belligerent to violate it. In order to
establish when a truce may be said to have been violated, it is necessary
to turn to the agreements which were made in arranging it, and to
determine whether they have been impaired, bearing in mind that such
agreements are to be interpreted with the fidelity, liberality, and good
faith which is assumed in contracts. Neque decet, observes Belli, cavillari
$actiones & foedera (Part V, chapter iii, n. 5).
A special chapter he devotes to postliminy. This right does
not belong to all, says Belli, nor does it pertain to all things lost in
war; with respect to both persons and things its benefits accrue only
in those cases sanctioned by law and custom. On persons the effect of
postliminy is to cause them to return to the status which they enjoyed
at the moment of their seizure by the enemy; or, better still, they may
be considered as never having lost their liberty. As for things, they are
deemed to belong to the former proprietor, however long a time may
have elapsed between the day of their seizure and the day of their re-
covery; for the right which proceeds from postliminy is not subject to
prescription.
Every effect of war should cease with peace. Moderation is
recommended to the conqueror, who has the right to punish, but not the
right to avenge himself or behave with cruelty toward the enemy. All
things seized during the war, whether movables or immovables, should
as a rule be restored, exception being made of booty. Peace annuls all
the consequences of war and must be considered as a true restitutio in
integrum. Even occupied territories are to be restored, except in the
case of contrary stipulations. In order to arrive at a correct judgement
concerning these restorations, and to ascertain when they are really
due, it is necessary first to scrutinize the treaty which effects the con-
clusion of peace, and to study its clauses. When one can infer that
the will of the parties is to arrive at a general restoration, then such a
restoration is unquestionably due. But if the contrary be true, it is
necessary to examine the cases individually, applying the general rules
of law to each, and taking account of the special modifications occa-
sioned by the war. Concerning hostages, Belli believes that both men
and women, regardless of their own will in the matter, can be given
as pledges, provided that they belong to noble families.
Fairness and good faith must govern in connexion with treaties of
peace; and in their interpretation it is not permissible to give way to
cavilling, lest a benefit, inspired by a feeling of humanity, be changed
into a hidden deceit or treachery. Peace is not to be considered broken
because of matters of slight consequence, or because of disquieting
suspicion ; nor is peace violated if a new cause leads to a new injury, nor
if the injured party attacks the offender.
r 8 a Introduction
Strongly in favour of arbitration, Belli develops his conception of
it with examples and very notable results. It suffices, he holds, for
one of the contending parties to declare in favour of submitting the
controversy to the decision of arbiters, the other party being then
obliged to lay down his arms and submit to arbitral judgement. The
mere fact that one combatant declines to accept arbitration is sufficient
to cause the ensuing war to be considered unjust on the part of that
combatant, and to invalidate all the consequences of such a war. For
Belli, then, the arbitral solution does not represent simply a com-
promise, an amicable settlement, but a true and proper right of every
belligerent, to which the opposing belligerent is obliged to submit. Its
acceptance by one of the parties is sufficient to make arbitration
obligatory for the other party, for in case of refusal the latter is
open to the charge of waging an unjust war. It is indeed remarkable
that such daring ideas, so decisively favourable to pacifism and to the
institution of obligatory arbitration, should have been formulated in
the year 1558!
We have thus set forth, as far as concerns those arguments which
can be of interest to the modern law of war, the general features of
Belli's treatise. From these it appears that he had examined all of the
most notable juridical questions and had deduced from the law of
nations principles which have had wide acceptance in succeeding
doctrines, and some of which have entered effectively into the practice
of states, having attained codification especially in the regulations
concerning the laws and customs of land warfare annexed to The
Hague Conventions of 1899 and 1907.
3. In what estimation has Bellies work been held by his con-
temporaries and by posterity ?
We note first of all a really singular fact : In Alberico Gentili's
treatise De lure Belli, which was issued in part in 1588 and in definitive
form in 1598, that is to say some thirty years after the De Re Militari
et &e Bello of Pierino Belli, the author does not refer at all to his
predecessor. Not only does he fail to recognize any merit in Belli, but
he disdains even to mention him. Such silence is inexplicable, the
more so since Gentili himself cites, and speaks of having studied, the
treatise De bello of Giovanni da Legnano, which is of earlier date than
that of Belli. On the other hand, the latter is referred to by Gentili in
his discourse in praise of the University of Perugia, where he mentions
also that Belli was classed by Menochio as an eminent jurist. It may be
added, too, that in his Hisfanicae Advocationes, in support of certain
opinions, Gentili invokes the authority of Belli, showing that he was
perfectly acquainted with the latter's treatise, of which he cites chapters
and paragraphs. Yet in the first pages of the De lure Belli Gentili
boasts of being the first to treat scientifically the law of nations and
Introduction
19 a
says in his text : Magnam atque difficilem rem aggredior . . . Non babent
libri illi de hoc jure, non alii ulli, qui extent. He adds : Equidem praeter
Lignani paucula huius tractatus^ et aliorum nonnulla alia sparsim, legi
nihil. There is manifest in Gentili, then, an absolute disregard for
Belli's work, a deliberate intent not to hold it in any esteem. For such
indifference, which appears truly unjust and excessive, the reasons
are unknown.
On the other hand, Belli's treatise received ample praise from other
illustrious jurists of the time. Tiraboschi wrote that 'Belli was the first
to apply the science of laws at any length to the usage of war'. Possevino
and Menochio likewise spoke of the work as one of great value, as being
a most diligent and profound commentary de re militari, to be read
attentively by any one who must concern himself with matters relating
to war.
But subsequently Belli's name and work remained for a long time
wrapped in profound, unmerited oblivion. With the exception of
Tiraboschi', says Manciniin his famous prelection of January 22, 1851,
'where is there one in our profession who has ever mentioned his
name with gratitude?' Pierantoni, too, acknowledges that Belli was
long forgotten and seeks to explain the fact by saying that 'this oblivion
occurred because, in the often wearisome work of compiling a scientific
bibliography, one writer copies another; and if an error of omission
once occurs, it endures unnoted through generations and centuries,
until, in a fortunate hour, a worthy and unexpected reparation is made'.
In Belli's case this reparation came principally as a result of the
work of Pasquale Stanislao MancinL Another illustrations Italian,
Count Federico Sclopis, also merits notice as having recalled attention
to the forgotten name of Pierino Belli, whom he considers worthy of
particular mention on the ground that, taking into account the nature
of the times in which he wrote, his work was developed on principles
which were very liberal. 1 But the vindication of Belliis due particularly
to Mancini, who says that he wishes, in homage to the truth, 'to protest
against an ancient injustice and to rescue from oblivion the name of one
who first attempted to give, as far as the times permitted, a framework
of systematic doctrine to the principles of the science' 2 of the law of
nations. While, according to Mancini, there is 'nothing which can
merit the term scientific' in the earlier and mainly theological writings
on similar subjects by the other Italians, Giovanni da Legnano and
Martino Garati da Lodi still less in the writings of any Spanish
canonist he recognizes in Belli's book the first juridical treatise on the
subject of the law of nations, and eulogizes him particularly for having
solved 'some of the grave and delicate questions propounded in the
1 See his work: Storia delta kgislazione italiana, ii, pp. 592-4.
2 Delia nazionalitd comefondamento del diritto delle genii, pp. 13-15.
2o a Introduction
course of his book with a conscientious and courageous liberality of
principle which, considering the official position he held, cannot but
be marvelled at, affording, as it does, a splendid contrast to the timorous
servility of many celebrated writers of the following centuries'.
But not even the enthusiastic and authoritative testimony of Man-
cini has been sufficient to establish definitively the scientific reputation
of Belli and to give him the place in the history of the doctrines of
international law which, according to our opinion, belongs to him.
By foreign authors he is scarcely cited. Wheaton 1 in his history of
the progress of the law of nations does not speak of him at all. Nys
mentions him briefly, without offering any critical appraisement, 2
while De Louter, 3 in a very hasty account, says that his treatise is more
complete and more systematic than those of his predecessors, but he is
quick to add that the place of honour in the sixteenth century belongs,
because of the importance of their writings and their breadth of ideas,
to the Spanish canonists and writers Victoria, Soto, Balthazar de Ayala,
Suarez, &c.
More serious are the disagreements among modern Italian writers
in their judgement of Belli's work. Frequently these dissenting views
appear in connexion with the evaluation of the work of Alberico
Gentili; some extol the latter as the sole precursor of Grotius, and by
so doing deprive Belli of all merit ; others, again, rank them equally
high, making it clear how much Gentili owes to Belli, even though he
did not care to mention his predecessor and showed that he disdained
Belli's contribution to the scientific elaboration of the law of war.
We find, for example, a favourable estimate of Belli's work in
Fertile, 4 who limits himself, however, to declaring it 'more practical
and able' than that of his predecessors; in Lomonaco, 5 although he
does nothing but repeat the eulogies of Mancini; and in Fusinato 6
who, with more independent judgement, observes that 'however much
some may in our day exaggerate the merits of Pierino Belli to the
detriment of Gentili just as those of Gentili are sometimes exaggerated
to the detriment of Grotius certain it is that Belli's treatise surpasses
in importance all that had, until then, been written on the subject ; and,
aside from those defects repeated in some measure in all of the precur-
sors of Grotius which consist of a deficiency in unity of concept and
in systematic treatment, of the theological direction given to juridical
discussions, of a confusion of public with private law and of morality
with law one finds in Belli a certain clear and methodical spirit, a
1 Wheaton, History of the Law of Nations in Europe and America.
a Nys, Le Droit international, i, p. 235.
3 De Louter, Le Droit international public positif, i, p. 98.
* Fertile, Elementi di diritto internazionale moderno, p. 32.
5 Lomonaco, Trattato di diritto internazionale pubblico, p, u.
6 Fusinato, Introduzione ad un corso di diritto internazionale pi4bblico f pp. 27-8.
Introduction 21 a
relative completeness in the exposition of the theories and practice
of his time, and a certain positive tendency which to a great extent
anticipates later methods'.
Mention is also made of Belli' s work by De Giorgi, 1 professor of the
philosophy of law at the University of Parma, who says that 'as for the
subjects taken for treatment, one can say that, considering the state
of the science and the social conditions of his time, nothing was
neglected. The doctrines are drawn from the springs of Roman and
canonical jurisprudence and from the principles of equity. The style is
not so polished as that of some who followed Belli : being a man who lived
among arms, he is not one of whom flowers and fronds of style and
eloquence are to be expected Such defects are a very slight imperfec-
tion where there is so much of the substance of juridical science. 3
De Giorgi affirms that 'Belli, with his treatise, gave a notable impulse
to the progress of the science of international law and began the
ordering and systematizing of it as a branch distinct from other related
disciplines. The work De Re Militari et de Bello, placed side by side
with the writings of other Italians which bear similar titles, does not
suffer by the comparison.' A lukewarm admirer of Alberico Gentili^
De Giorgi considers that the latter, in merit as in time, was preceded
by Pierino Belli, 'who is in truth the initiator in Italy of the science
properly called international law'.
Mulas is the chief apologist of Belli, having devoted to the latter's
life and work an entire booklet which is notable for its diligence, culture,
and balance of judgement. With Belli, he says, there is recognized for
the first time in the realm of science an independent international law,
'which not only begins to draw away from theology but revolts against
those who, in the name of theology, sought to violate its dictates. The
work of Belli represents the first attempt looking toward a scientific
organization of the law of nations.' Mulas opposes those who proclaim
Gentili as the first founder of the law of nations. 'It is not to be denied
that the work of Gentili represents an advance in comparison with that
of Belli; but this progress, so marked with respect to form, actually
amounts to but little as regards substance. All the questions treated
by Gentili were studied and solved before his day by Belli.' The latter,
says Mulas, smoothed for Gentili and Grotius the path along which,
they afterwards passed in triumph.
There are not lacking numerous and authoritative voices support-
ing the opposite view. Pierantoni, who at first 2 extolled Belli's work,
speaking of it as having great historical value and showing that it repre-
sented an advance over the previous writings of a rather theological
1 De Giorgi, Delia vita e delle opere di Alberico Gentili (Parma, 1876), pp. 75^3-
2 Storia degli studi del diritto international* in Italia (Modena, 1869), pp. 35-42 J Storia del dintto
internazionalenelsecolo XIX (Napoli, 1876), pp. &-I2.
22 a Introduction
nature on similar subjects, later withdraws his encomiums and says 1
that Belli 'did not intend to consider the renovation of the law of war,
nor to give a special organic structure to this very noble branch of
jurisprudence'. Since Randolino had extolled Belli's work, saying that
in it 'there breathed almost everywhere a breath of new law', Pieran-
toni opposes him by maintaining that such a judgement is contradicted
by all the decisions and rules of law reported by Belli,
Pasquale Fiore likewise says that, 2 if it be just to commemorate
Belli among those who dealt with questions of international law before
Gentili and Grotius, yet it is to no purpose to exaggerate his merit.
'Belli's work lacks unity of conception, systematic treatment, and^the
complete separation of questions of international law from questions
of private law. One finds, it is true, rules relative to war, but the
author discourses more at length upon the organization of armies,
upon the rights and duties of persons who belong to the army, upon
military administration, &c.' Fiore adds that, 'if one wishes to consider
some one who had written about the law of war as a precursor of
Grotius and Gentili', it is necessary to give the precedence to Giovanni
da Legnano.
But Belli's severest critic is Speranza,3 a fellow-countryman and^a
biographer of Alberico Gentili. Speranza recognizes in Belli, 'the merit
of an ample juridical erudition, of an unusual fund of good, practical
sense, of a certain method in setting forth his vast material, and finally
the merit of a humanitarian sentiment . . . but it is quite another thing
to regard him as the precursor of a law in process of formation, as was the
case with international law. Far from being that, he was, together with
Ayala, the last of that company of political jurists and canonists who
gathered together and expounded the rules of the canonical equity
which was introduced into the practice of war as subordinate to the
policy of the imperial theocratic law. 5 According to Speranza, 'Belli^did
no more than repeat what the preceding jurists and canonists devised
on the basis of natural equity. . . . One cannot even give Belli the honour
of having been the first to assemble in methodical exposition^ the
scattered semi-juridical, semi-political disquisitions upon the subject.
For Belli drew largely upon Legnano, and even more upon the latter' s
imitator, Garati, not only for methods of expounding whatever
concerns war, but also for the rules in force J In a word, Belli, 'far
from representing in his work an improvement in the law of nations, was
a simple expositor of practical cases relating to the subject, according
to the knowledge and principles of his time'.
4. Our own opinion among such disparate judgements remains to
be stated.
1 Storia deilistudi deldiritto internazionale in Italia (II ed., Firenze, 1902) pp. 155-70.
2 Trattato fa diritto internazionale pubbtico, III ed., i, pp. 50-1.
3 Giuseppe Speranza, Alberico Gentili, Parte seconda (Ascoli Piceno, 1910). pp. 82-99.
Introduction 23 a
Mancini wrote 1 that c in the material treated, in its arrangement,
in that logical form of argumentation which was esteemed in his
century, as well as in the erudition in which there was no flaw, one
recognizes at first sight' that the work of Belli 'served as an example and
guide to Grotius and Gentili'. What is the ground for such an assertion,
so important in judging of the value of Bella's contribution to the
scientific foundation of international law? Upon this point Mulas
instituted a diligent and accurate comparison which, even though
appraised with moderation and prudence, seems to us convincing and
such as to demonstrate that Gentili's work (although written thirty
years later) and Belli's treatise have various points in common, and
that the similarities in the two works cannot be accidental and entirely
independent of each other.
Common to both Belli and Gentili is the conception of war, which
they consider as derived from the law of nations, as the sanction neces-
sary to maintain that law inviolate. War is a necessity, and hence, in
order that it may be juridically recognized, it is needful that this
characteristic of necessity be so clearly manifest that war is viewed as
something from which it is impossible to retreat, as the sole efficacious
means of re-establishing the harmony of law among nations as an evil,
in short, but a lesser evil than that which would proceed from leaving
the rule without sanction and the law subject to the will or caprice
of the strongest.' 2 Belli's statement is : Bella nisi ex magna causa non
suscipi, eaque iusta, tff necessaria^ censent boni omnes(7t. II, chap, i, n. i)
and in another place : Bellum debet esse necessitates (Pt. I, chap, v, n. 13).
Later Gentili repeats in incisive phrases : lustum bellum habet semper
necessitate,, ut ex necessitate bellum descendit (Bk. Ill, chap. xvii). And
Grotius: Rara . . . belli sumendi causa est quae omitti aut non possit aut
non debeat (Bk. II, chap, xxiv, sec. 8).
Belli groups wars under the heads offensive and defensive:
Originem ipsam bellorum inter homines ab iniuria processisse credendum
est sive inferenda sive propulsanda. Substantially the same idea is
expressed by Grotius : Causa iusta belli suscipiendi nulla esse alia potest,
nisi iniuria (Bk. II, chap, i, sec. i). Gentili makes a more complicated
division of the causes of war under three heads : divine, natural, and
human; but he finishes nevertheless by recognizing the principle that
wars have the object of inflicting or warding off an injury.
Both Belli and Gentili hold that a war waged without a prior
declaration is unjust. Gentili further decides definitely on a period of
thirty days as the length of time which should elapse between the
declaration of war and the beginning of hostilities, while Belli abstains
from a definite decision.
The two material and express conditions upon which Grotius
1 Prelezione, op. cit., p, 13. a Mulas, op. ciU, p. 75.
24 tf Introduction
makes formal war depend, that is, authority and the declaration the
power to make war, either "by direct decision, if the belligerent enjoys
sovereignty, or by permission from his immediate superior, and the
regular challenge which must be given before taking up arms are
both to be found already indicated in Belli's treatise. The necessity for
conducting the war with justice, and the condemning of unfairness
toward enemies and of treachery in the arts of war, are also set forth
by Belli with arguments and principles which do not differ greatly
from those of succeeding writers. Gentili' s views on truces, on persons
to be spared from the ravages of war, on the treatment to be given to
prisoners of war, likewise show a notable similarity to those of Belli,
The latter is rather the more generous of the two toward prisoners of
war, since he would have them exempt from every kind of cruelty, while
Gentili limits himself to declaring the killing of prisoners to be inhuman,
but enumerates ten cases in which it would be permissible as an excep-
tion to injure them.
With reference to alliances, Belli teaches that a pact which can
draw an ally into an unjust war must be considered null and void
(Pt. II, chap, xvii, n. 8). One finds the same principle confirmed
afterwards by Grotius (Bk. II, chap, xv, sec. 13). We may note also
that the question whether it is permissible for a prince to decide a
war by a single combat, which was examined and determined in the
negative by Gentili, had already drawn a like answer from Belli.
Recommendations to the conqueror to be moderate as regards
conditions of peace are to be found in both Gentili and Belli. The
former lays down more exacting conditions, for he states that, in addi-
tion to the cost of the war and the indemnity to be imposed upon the
conquered, the conqueror has the right to exact tribute both in money
and in territory, to retain permanently the places occupied by his
army during the war, to destroy conquered cities, &c. According to
his opinion, the territories and things occupied belong to the conqueror,
unless there are treaty stipulations to the contrary. But to Belli this
precept, as afterwards laid down by Gentili, constitutes the exception
rather than the rule; he favours a restitutio in integrum, provided that
the parties have not agreed otherwise in the treaty of peace.
Finally, the idea of arbitration is common to both Belli and Gentili.
But the development of this idea seems more decisive and rational in
the case of Belli who, as we have already mentioned, threatens with
the guilt of unjust war the belligerent who refuses to accept the
proposal of the opposing belligerent to submit the dispute to arbitra-
tion; whereas Gentili with more vagueness closes the third book of
his treatise with a prayer to God that, wars having been made to cease,
the benefits of peace may be enjoyed by all humanity.
From this rapid comparison, every part of which it would be
Introduction 25 a
interesting to develop in full, there seems to us to emerge the con-
clusion that Gentili must have utilized and profited by Belli' s treatise.
That he was acquainted with it is certain, as we have already observed.
Is it possible that he took no account of it while preparing to write
on the same subject? Progress in every science is the product of
cumulative labour. Every student profits by the efforts of his pre-
decessors, by the results they attained and the materials they collected
and elaborated ; he seeks to advance a step, to complete a more perfect
work. But fairness requires that he should recognize how much he
owes to those who preceded him, that he should not discredit or
impugn their merit in order to magnify his own. Grotius mentions
the help he derived from the study of Gentili's work, and the latter
in turn renders honour to the Spaniard Francisco de Vitoria, to
whom it is certain that Pierino Belli also owed much. In the light
of such just acknowledgements Gentili's absolute silence regarding
Belli affords an unpleasant contrast; a contrast which, inasmuch as the
similarity in treatment and solution of many questions of the law of
war by the two writers cannot be purely accidental, is aggravated by
Gentili's lofty affirmation of having been the first to treat of the
weighty and difficult subject.
Extreme and unjust, moreover, is the accusation against Belli that
he merely repeated the rules of canonical equity already expounded
and collected by other jurists, without attempting any direct reform
designed to liberate the study of international law from the bonds of
theology and to give it the dignity of an independent discipline.
For the splendid endeavour to detach international law from
certain theological premises upon which it had until then been based,
and for initiating its amalgamation with the ius gentium, the credit
is due to Alberico Gentili and above all to Grotius, who, belonging
to the Protestant faith, were free from the bonds which restricted the
liberty of thought of a sincere Catholic like Belli. The latter could not
develop in all its consequences his idea of determining the rational
principles of the law of war by seeking after them outside of theology,
by substituting reason and the authority of history and jurists for those
purely canonistic rules upon which the preceding writers based all their
doctrines. In him, intellect must many times have bowed to faith.
Nevertheless, even though it may not be clearly manifest, his
endeavour to emancipate the treatment of international law from theo-
logical meshes seems to be indicated indisputably by his doctrine as a
whole. 'It is true', observes Mulas, 1 'that theological reminiscences still
form the background of Belli' s work, and that it also abounds in con-
cessions of privilege to priests and infrequent subordination of his judge-
ment not merely to the Bible, but also to the teachings of the canons or
1 Mulas, op. dt. 3 p 63 et seq.
1569-64 d
26 a Introduction
of the holy Fathers. But there are conclusions which show that, though
remaining firm in the Catholic beliefs to which he clung most tenaci-
ously, he tended to withdraw international law from the authority
whose yoke it bore.' The affirmation that war and peace appertain to
the law of nations, from which principle it follows that all inter-
national controversies should be regulated exclusively by the same law
of nations and not by theological precepts; the continual recommenda-
tion of humane treatment during warfare, and of moderation on the part
of the conqueror ; the opinion that, in cases of urgent necessity, the privi-
leges and favours enjoyed by the clergy lapse and that they, equally
with the laity, are obliged to bear the burdens necessary to render the
state strong and secure, there being in such cases no distinctions among
its citizens; the further affirmation that, in moments of extreme danger
when every hindrance may turn out to be fatal, it is permissible to
seize necessary resources wherever most convenient, not even exempting
the treasury of the churches; and finally, the authorization to resist the
instigations of the popes which were directed toward violating the law of
nations these and other principles and concepts which are found in
Belli's treatise reveal clearly a mind which not only aimed to free itself
from theology, but rebelled against those who, in the name of theology,
attempted to violate the principles of the law of nations. The extent of
Belli's merit becomes apparent when one reflects that he wrote in a period
in which theology was considered the regulating guide for every human
activity, and that to it, following the usage and traditions of the
time, even Belli had to declare respect and homage. But such inevitable
declarations did not prevent him from seeking outside of theology the
bases of the new conception of law, or from deciding the individual
questions of the law of war apart from theological premises. Gentili
and Grotius proceeded much farther in that direction; but it seems
unjust and contrary to historical truth to deny to Belli the praise for
having been their precursor, for having been the first to attempt, in
the face of difficulties presented by traditional conceptions and formulas,
to raise the treatment of international law to the dignity of an indepen-
dent scientific discipline. 1
The criticisms directed against the work of Belli as regards lack of
logical order, deficiency of style, confusion in treatment brought about
by the injection of extraneous questions, lack of unity, an insufficient
critical spirit all these criticisms are in themselves quite just; but
justice requires that account be taken also of the early period in which
he wrote, of the difficulty inherent in a first, uncertain attempt at
scientific elaboration, which was carried out under adverse conditions
and in which one cannot of course expect the excellence which the
scientific elaboration of a given system of rules attains only at the
1 G. Chialvo, 11 precursors italiano del diritto internazionale, 1919, pp. 20-4.
Introduction 27 a
time of perfect maturity. As for the charge against Belli regarding
excessive and sometimes irrelevant erudition, regarding the over-use of
citations and examples drawn from the most diverse sources and often
stifling with the voice of authority or precedent the free and rational
development of points and principles one is dealing here with a defect
which will be met with also in Gentili and Grotius. On the other hand,
we have already seen how, in the study of the most important state-
ments on the law of war, Belli indicated solutions and principles, many
of which we afterwards find in Gentili, in Grotius, and even in modern
treatises.
Having recognized in Belli the merits which in our opinion he
possessed, we do not intend, however, to deny his inferiority, from the
point of view of scientific elaboration, not only to Hugo Grotius but
also to Alberico Gentili. Mulas, though a fervid defender of the merits
of Belli, recognizes nevertheless that Gentili treated the subject c in a
more scientific manner, purging the law of nations of a multitude of
distinctions and extraneous questions. Furthermore, Gentili possesses
the merit of a degree of critical judgement which, although still rudi-
mentary and crude, reveals the tendency of the human spirit to rise to
a conception of the highest principles. We find Belli, on the contrary,
continually referring to examples from history, to the laws and customs
of peoples, and to the decisions of the Doctors; but this patient labour
of erudition is not co-ordinated and directed toward a definite and
superior purpose, nor does it aim to evolve from all these examples a
single harmonizing dictum which would reconcile the diverse concep-
tions. Such, however, is the aim of Gentili, who is not content to cite
the laws and customs of peoples, but is continually comparing these
sources, and from such comparisons endeavouring to derive general
rules which he then sets about applying to the solution of individual
questions/ 1
Even against Gentili, however, serious criticisms were directed by
Grotius himself, by Bynkershoet, Heineccius, and others; criticisms con-
cerning defective method, insufficient breadth in the treatment of his
subject, excessive introduction of unwarranted elements which retard
the rational development of the questions treated, obscure distinctions
between morality and law and between the latter and political matters,
the ascription to Roman law of an exaggerated influence on inter-
national relations, and so on.
Impartial criticism, while recognizing Gentili's superiority to
Belli, assigns to the latter a notable place among the precursors of
Grotius. , Intuitively, though in an uncertain and imperfect manner, he
apprehended the need of ridding the doctrine of international law of
the theological premises upon which it had until then been founded ;
1 Mulas, op. ci(. 9 p. 90 et seq
28 a Introduction
and, combining it with the law of nature, he gave thereby to the law of
nations an independent base grounded on liberal reasoning. Progress
in science is generally the fruit of the cumulative labour of a consider-
able number of writers, each of whom continues and betters the results
of those who preceded him, until there appears one who sums up the
previous efforts in a decisive and perfect elaboration. Pierino Belli was
certainly among those who prepared the ground upon which Grotius
was afterwards to raise the superb edifice of his treatise De lure Belli
ac Pads.
ARRIGO CAVAGLIERI.
f the University.
TRANSLATOR'S PREFATORY NOTE
The text of Pierino Belli's De re militari et bello tractatus differs little from that of other
works of its class. A few words of explanation, however, may not be out of place.
The Synopses prefixed to the various chapters are not correctly so designated. Appar-
ently after the chapters themselves were written out, checks were entered in the text against
such points as might be gathered up into an alphabetical index at the end of the volume.
In the margin opposite the points checked a series of numbers was written, without regard
to the relative importance of a point or its immediate relevancy to the subject of the
chapter. By listing these ill-assorted items in the order in which they appear in the text
the 'Synopses' are made up. Some of the effects are startling. Thus, in the chapter 'On
the Office of Governor' the 'Synopsis* develops the following sequence :
Who are obliged to repair or to sett buildings?
A madman should be put under restraint by bis relatives.
Neglect should not go unpunished when it results in damage to another.
Obviously this sort of analysis affords no adequate working basis for paragraphing the
English version, which is arranged without regard to the marginal numbers. In some
cases the 'Synopses' are even misleading, in that the phrases caught up from the text to be
incorporated there are incidental remarks that do not represent the view which the
author himself is developing in the body of the chapter.
Belli is a rather discursive writer. Many of his sentences are long and rambling, with
parenthetic remarks on minor details. To help the reader to follow the thread of the
argument, free use has been made of round brackets to set off matter that is parenthetic.
A rather serious difficulty was encountered in the looseness with which quotations
are made from classical authors, notably Livy. Some variation from the texts as printed
to-day was, of course, to be expected; but the matter is further complicated by slovenly
citation, reliance upon memory, and, apparently, even intentional manipulation of the
text, together with failure at times to understand the original. All this puts the translator
in a position of great disadvantage; he does not wish to report an ancient writer as saying
something which he did not say. Where discrepancies are too glaring to be glossed over,
attention is called to the fact in a footnote.
Belli's extended treatment of the Roman civil service presents another special problem.
There are no recognized standard translations for the names of many of the multitudinous
officials in this list; and in some cases even the duties of an office are not certainly known.
In dealing with this matter, the arbitrary rule was adopted that only those titles should
be translated which have well-recognized English renderings, or which lose nothing in
clearness by translation. In other cases it has seemed best to retain the Latin designations,
e.g. agentes in rebus*
As for the references in the text, citation from the Corpus luris Civilis is made on the
basis of the edition of Krueger, Mommsen, and Schoell, where the renumbering of the
third volume must be taken into account. References to the Feudorum Libri conform as
far as possible to the text and appendices as found at the end of the third volume of
Kriegel's edition of the Corpus luris Civilis.
The style used in citation has been made to conform with the practice in this series.
EDITORIAL NOTE
Professor Nutting wrote the Translator's Prefatory NoU, printed on a preceding page,
shortly before his untimely death, on September 23, 1934.
In the course of preparing his scholarly translation, he had marked many errors in the
edition of 1563, but had not completed this phase of his work. His notes and correspon-
dence, however, indicated to some extent what he desired particularly to bring to the
readers' attention, and the work on the errata was therefore continued along these lines.
Before referring in detail to the treatment of errors in the Latin text, it may be appro-
priate to offer a word of comment on certain critical problems involved in editing the
texts of the Classics of International Law.
In medieval and renascence Latin there are a number of things which differ radically
from the classical usage. There are constructions which would not have been admitted
by Cicero, orthography as curious to the modern eye as it would have been to Vergil's, and
words which would have been strange even to St. Augustine. While these changes are,
historically, an indication of the language's development and vitality, they have become
since the end of the renascence, with its return to the classical standard, more obsolete
and archaic from the point of view of the student of to-day, than the tongue spoken by
Plautus two thousand and more years ago.
It may thus be said that there is a medieval as well as a classical standard, each applic-
able to the literary productions of its own period. The texts published in the Classics of
International Law belong wholly to the more recent period, and in view of this fact the
general policy which has been adopted is to consider as proper errata only those variations
from the accepted usage of the middle ages and renascence which resulted from printers'
errors, or carelessness on the part of the author or the early editors of the work involved.
Pierino Belli's De re militari et bello tractatus is illustrative of these conditions. The
vowels u and o are interchangeable in the late Latin used in this text: consequently, when
Belli quite consistently writes lungus for longus, and lunge for longe> it has seemed proper
not to consider these as errata. By the same token, moltitudinem on page 41 of the Latin
text, is not an erratum, Again, e^ oe, and ae are interchangeable; but these, though not
errata, require special mention in that they are employed in certain words where difficulty
might be encountered by a modern reader, because of confusion between two or more
words whose stems or endings contain the interchangeable vowels. An editorial footnote
has therefore been added at the appropriate points in the translation, by way of clearing
up the difficulty.
Modern orthographers reserve the letter y in Latin for certain well-defined cases; for
example, to indicate the presence of the Greek letter v where Latin derivations from a
Greek original are concerned. The Latinists of Belli's day recognized no such distinction
(see p. 100 of the Latin text, Hyspani; p. 108 verso, Aegipto).
Midi for mibi (see p. 113 verso) is not common in the sixteenth century, but it was
still good usage. Some consonants interchange almost as frequently as the vowels : c and t
when followed by z, and m and n, are perhaps the most outstanding examples. The usage
with regard to the doubling of consonants is variable and irregular; in occasional cases (as
for instance on p. 34 consumatum for consummatum) leading to a possible confusion, to obviate
which a footnote has been added. Here and there in late Latin we come across words which
are apparently provincial restorations, as it were, of the very ancient Latin forms. Belli pro-
vides an example, on p. 127, writing obmisswn for omissum.
The modern reader of any medieval or renascence text is confronted at the outset
with what may be termed a mechanical difficulty. This is the matter of abbreviations.
The less obvious ones, such as Dnm on p. 128 verso, and cois, on p. 123 and passim, have
been noted in the footnotes; but the more commonly used were not considered as requiring
32 a 'Editorial Note
comment: such, for instance, is the use of the ampersand (W); or of the tilde or
long mark over a vowel to indicate, as a general rule, the omission of m or . Lines as
abbreviated as the following are, happily, of infrequent occurrence (p. 47 verso): Quaesita
p hostes y recuperata si iteru eis qratur, an i prior? statu icidat.
Applying then, as a broad rule, the editorial policy that late Latin works should be
criticized by the standards of writing current at the time they were written, the editor
has endeavoured to carry out Professor Nutting's plan, making free use of his notes, within
the lines drawn by that policy. As Professor Nutting had prepared no list of errata for the
edition of 1563, but had commented on many errors in notes to the translation, it seemed
advisable to deal with all of the errata in footnotes to the English text, rather than to
prepare a separate list for publication with the reproduction of Belli's text. The numerous
footnotes which the translator had written up in their final form, and for which he himself
assumed full responsibility, have been appropriately signed with the letters Tr, The notes
added by the editor have been marked Ed.; but for these also most of the credit should
go to Professor Nutting, since, as has been indicated above, they are almost entirely
extensions of the jottings made by the Translator upon his copy of the Latin text.
The translation is entirely the work of Professor Nutting, with the exception of
a very few minor changes of an obvious nature, which the translator himself would
probably have made had he lived to revise the final proofs.
JAMES BROWN SCOTT,
Editor.
[The Title-page of the Edition of 1563]
A TREATISE ON
MILITARY MATTERS AND WARFARE
IN ELEVEN PARTS
By
PIERINO BELLI OF ALBA
Noted lawyer and Adviser to the most serene
EMMANUEL PHILIBERT, DUKE OF SAVOY
In this work, in addition to the discussion of military
matters, many points are touched upon inci-
dentally which concern civil administration.
Very essential for all judges
With Authorizations
Printed at Venice by
FRANCISCUS DE PORTONARIIS
1563
[li]
[COPYRIGHT]
EXTRACT FROM THE KING'S PATENT 1
On this day, the twenty-eighth of August, 1562^ the King, being encamped before
Burgos, has given permission, authorization, and the right to Lord Pierino Belli of Alba,
counsellor of state to my Lord the Duke of Savoy, so far as he may and in so far as it is
for him lawful, to have published by such printer of this realm or any other, and in such
volumes and style as he shall think best, a book written by him and entitled A treatise on
War and Military Matters, with a special provision in favour of said printers that no other
than they may sell, distribute, or expose it for sale in any way whatsoever during the time
and period of ten years next ensuing and following, beginning with the day on which the
said book shall come off the press. This injunction His Majesty very specifically lays upon
all publishers without exception, 2 under pain of confiscation of said books and a fine of
amount not specified. With orders from His Majesty aforesaid to dispatch this present
warrant for the enjoyment 3 of the said permission, the Queen, his mother, being present.
ROBERT.
Also with the authorization of the distinguished Senate of Venice and other frinces
1 [For priuillege read priuilege. ED.] 2 [For qudonques read quelconques. ED.]
3 [For ionissance read iouissance. ED.]
[iii]
[DEDICATION]
For the most eminent and invincible Philip,
King of Spain,
Pierino Belli, a lawyer, frays health and prosperity.
WITH good reason it will cause all men to wonder that I, a man of
such poor wit and lowly fortune, have ventured to address you in my
writings, Philip, greatest and most invincible, and to dedicate to your
name my efforts, such as they are. Indeed, some will criticize and
reprove me, on the ground that such a course is scarcely permissible
to the greatest geniuses and the most learned and prominent men,
among whom I should not venture to claim a place. The very title of
my work will confirm this feeling regarding me; for just as Hannibal
laughed to scorn a philosopher who in his presence held forth dog-
matically on the duties of a general and other matters pertaining to the
business of war, so, in addressing a treatise on this same subject of war
to the greatest of kings and a pre-eminent warrior, I shall seem to be
guilty of presumption and rashness. In the first place, I must absolve
and clear myself of this guilt, or [iv] at any rate I must in some way
excuse or extenuate it. I will answer then, first, that in this book of
mine I profess to be no expert in the art that teaches how to select
recruits and other soldiers, or how to instruct them in marching, in
leaping, in charging, in the use of missiles, in avoiding and inflicting
wounds, and all the rest; nor (do I propose) either to instruct the
general himself as to what sort of place he should choose as a location
for a camp, how to draw up his line, what troops to hold in reserve, with
what devices he should meet the craft or valour of the enemy, by what
methods and with what engines he should defend his own cities or
take those of the enemy. In fine, I do not mean to lay down rules and
regulations for warfare; for I should be most foolish to teach and to
pursue such subjects. Rightly would it be said to me, 'The cobbler
should stick to his last 5 . And yet those do not go so far astray as to be
inexcusable or ridiculous who write such treatises to kings and generals.
For in happier times there were men who so wrote as Frontinus to
the deified Trajan, Aelian to Hadrian, Flavius Vegetius to Valentinian,
Modestus to Tacitus, and earlier than all these, Paternus to Augustus
himself, the greatest of all generals. Such effort was not counted vain
or perhaps profitless. But my present task is far different; far remote
is [v] my plan and intention. For inasmuch as, during almost all past
ages, in obedience to a standing principle derived from the very law
of nations or, more probably, instilled into their minds by the act of
God himself kings and peoples have followed the practice of not
declaring war before the reason and cause for declaring it have been
shown, it is in the highest degree proper and even a duty that
Christian kings, princes, and peoples adopt this principle. I should not
iv
Dedication
hesitate to say that those who fail to do so violate the law of nations
and even that they sin grievously not only against the whole human
race but also against God himself. For, with justice absent, what is
warfare other than open brigandage ? For what is less seemly for a ruler,
especially one who believes in Christ and furthermore in God, than to
authorize killing, plunder, fire, and devastation, and, in fine, the
numerous and awful crimes that are committed in wars, if he issues
his orders in sheer wantonness and not in accordance with a fixed and
approved principle ? What of the fact that it is not enough that the
aforesaid causes and preliminaries (of war) be regular and legal, unless
wars are carried through and finished on the same basis upon which
they were undertaken ? For not because a prince has the ability and
also the authority and justification for waging war ought he to launch
an attack upon all persons indiscriminately, even though they be in
the enemy's territory, and to let loose his soldiers (upon them) [vi].
Consideration must be had for persons, things, times, and much else.
Moreover, he will not give a free hand to the soldiers, even though
their action might be to his own advantage; but he will consider what
is right and what is expedient. Turning these matters over in my mind,
in view of the fact that, from the time of the declaration of war by
Francis, King of France, against Charles, Duke of Savoy, I served in
the camp of the invincible Charles the Fifth, your father, greatest of
kings, under the command of Alfonso d'Avalos, Marquis del Vasto, under
Ferrante di Gonzaga, and under the Duke of Alba himself, and was
put in charge of the administration of law and justice in the military
court, whence also the name ' Judge' accompanied my appointment;
and, in view of the fact that, after the direction of such great realms
was taken over by Your Royal Highness, (I served) under the Reverend
Cardinal of Trent 1 and the Marquis dePescarahimself aman famous not
less for his own valour and renown than for his father's being advanced
from the aforesaid rank to the duties of war minister, I continued under
the above-named officers and finally under the Duke of Mondragone
until the end of the war and the conclusion of the peace, having entered
the service with dark hair and vigorous health, and laying it down with
hair entirely white, and with strength all but worn out; revolving, I
say, and considering these things for many years in my mind, I judged
it a project not vain or unworthy of my profession, of my purpose, and
also of a dutiful mind, [vii] that I should write something about war
and military matters, so that I might admonish rulers what their
powers are, and what is permissible; what is their right procedure in
declaring war, and what in making and observing treaties ; what in these
respects are the powers of the commanders of armies on their part, and
1 [Christoph, Cardinal von Madrutz (Madruzzi), Prince-Bishop of Trent from 1539 to 1567, during
hose occupation of the see the renowned Council of Trent was held. ED.]
vi Dedication
what is unlawful for them; what on the part of the soldiers is the proper
attitude toward armed foes, toward prisoners, and toward surrendered
men ; what is lawful among themselves, what in dealing with provincials
whether those of the enemy or their own what in respect to any class
of people and to all things whether animate or inanimate; what, finally,
the provincials should do or suffer in their relation to the prince who is
at war, and what with reference to the soldiers for their part. I hoped
that if I should definitely formulate such matters and transmit them to
posterity, I should accomplish these two things : first, that I should show
that I had not lived all these years idly and lazily; second, that I had
benefited the state a little, if not much. As for the fact that I singled
you out, invincible king, as the one to whom I should dedicate this trifling
gift and work, it was not so much a matter of boldness on my part as of
obligation and debt. For since through all my best years I served under
your father Charles, the most exalted and greatest of themonarchs of his
day, and under your Highness; [viii] and since under the shield of both
father and son I was sheltered from the violent storms and the whirlwinds
of events, and was the recipient besides of generous gifts, to whom was it
more fitting that I manifest the earnest and devoted gratitude of a respon-
sive mind, as best I might, than to the son of so eminent a commander,
himself so great, so invincible, so resplendent, so high-souled a king ?
To whom could I with more fitness write on the subject of war than to
a man who had finished with high good fortune and settled with the
greatest generosity wars of the first magnitude that had run a wild
course through many generations, and of whose conclusion and end there
was no hope ? To whom, in fine, was it more fitting that I address words
touching treaties and the peace during which I have written my humble
work than to the king who, almost with no effort, and with the most
righteous and fair laws, and with a full mede of justice, restored to the
earth peace that had long been in exile, desired of every one, despaired
of by all, and anticipated through the grace of God alone ? and with
such sincerity, and with such gratitude and joy on the part of rulers,
states, and peoples, that it was his choice to adjust matters and to further
general security rather than to be himself a victor. Now since it was
provided by the law of the Persians that no one should approach the
king without a gift, and also by the divine law that none should appear
before God empty-handed, do you also, best of kings and mightiest
of earthly lords, with the ready kindness known to all accept this gift,
not such as you [ix] should receive, but such as I can give; and permit
me, a servant devoted to Your Majesty, to pass in quiet under your
protection my old age and what remains of life; and accept with your
accustomed courtesy and kindliness this little gift in the spirit of the
giver rather than on the basis of its merits. Farewell, sole hope of the
Christian world and ornament among kings.
M
[LAUDATORY EPIGRAMS]
OF FEDERICO ASINARI
CONTE DI CAMERANO
Running through the Iliad, Belli noted Mars laid low by a blow from Pallas; whereat
he groaned and said: *I have worked up this subject. Take instruction, Mars> [from me].
When trained, you will not need hereafter to fear a brush with Pallas.'
PHILIBERTXJS A PINGON, BARON OF CUSY
REFERENDARY OF SAVOY, ON
THE TREATISE OF PIERINO BELLI
To Homer is known only the soldiery of Achilles or Ulysses; Vergil has naught but
Aeneas; only the battle-lines of civil war did you sing, Lucan; the trumpet blast of
another 1 produces only a Tbebaid. All the Greeks and Romans who have written treat of
some detail or other that is incomplete. Enough; in times past also you have compiled
one-sided treatises. Belli at home develops into an art warfare that is to be waged abroad.
OF FRANCESCO FERRARI
ON PIERINO BELLIES BOOK
Among the greatest gifts which the King of Heaven had granted the tribe of Jesse,
[xi] fourteen gems gleamed with the light of dawn on the shoulder of the priest. Through
him a suppliant leader in adversity would ask direction from the Holiest of Divinities. But
now, if yours be the grim business of Mars, 2 and you are hard pressed by a godless adversary,
happy will be the issue for one who follows steadfastly the principles laid down by Belli. If,
on the other hand, the strife past, you are enjoying unbroken peace, the page of immortal
Belli has eloquently set forth what treaties are most just, what mercy (should be shown) to
vanquished foes, how best a government is established. On all counts one might be in
doubt whether Belli is braver as a general, wiser as a senator, or more eloquent as a speaker.
ON THE SAME
Belli has revived the laws of the camp and Roman arms, and restored them to their old
glory. By this science the Carthaginians were crushed, Niphates defeated, and the necks
of kings were sent under the Roman yoke. Unnumbered triumphs are due to you, Pierino,
who auspiciously regulate savage war. Whether a general prevails on sea or land, recogni-
tion should be given to you; to you it is entirely due that he prevails.
ANOTHER SELECTION ON THE SAME
At the birth of Belli a sharp contention arose among the gods; for each wants Belli
for his own. [xli] In her own right fostering Pallas claims him; and the goddess declares
1 [i.e. Papinius Statins. TR.]
* [For gradivi read Gradivi. TR.]
vii
viii Laudatory 'Epigrams
him to be set apart for her and her peculiar possession from his earliest years. The noise of
'War' 1 roused up Mars; he thundered, and in turn drew Belli under his jurisdiction.
Phoebus Apollo feels outraged that he has lost a poet; for it is said that Phoebus was the one
who gave laws to the earth. But because he 2 tells on what principles the majesty of thrones
and proud sceptres are to be handled in peace and in war, Heaven's high king makes him a
partner in his counsels and assigns him to the highest orders among the gods.
OF BERNADINO FRAGHETTI,
SECRETARY TO THE MOST EXALTED
PRINCE OF SAVOY'S AMBASSADOR
TO THE VENETIAN STATE
Finely 3 and well, Belli, you tell how wars are to be conducted, whether they are to be
waged at home or abroad. Many poets have sung the high deeds of heroes, thereby winning
for themselves undying fame. But the writings of the ancients should scarcely be imitated
by gifted geniuses; your writings are more praiseworthy and finished. Whether the
practice of war is desired by the recruit or its principles by the man of learning, he should
read these and the manner of conducting a camp. Hence, since you impart splendid rules
for the service, greater praise from all is due to you than to those whose ambition it was to
set forth the deeds of heroes in ornate phrase and with imagery utterly fanciful.
1 [The pun upon the name of Belli cannot be represented in English. TR.]
[i.e. Belli.-TR.]
3 [Another pun upon the name of Belli. TR.]
[1]
A TREATISE ON MILITARY MATTERS
AND WARFARE
in Eleven Parts
by
PIERINO BELLI
of Alba
Noted lawyer and Adviser to the most serene
Emmanuel Phltibert, Duke of Savoy
Parti
CHAPTER I
ON THE ORIGIN AND ANTIQUITY OF WAR
SYNOPSIS
i In the city, 1 brother was first to kill
brother.
2 Battle was waged in Heaven.
3 Wars will endure even to the end of time,
a Genesis, iv
[8]-
1 IT is a well-established fact that war is an ancient business among
men, and that its beginnings are almost coincident with those of the
human race itself. For, at a time when there were but two brothers,
sons of that common parent of us all, Sacred Writ records that one
made an assault upon the other ; a so that it might truly be said with a
certain poet:
In brother's blood primeval sod was steeped,
as is written elsewhere of the founders of Rome. 2
2 In fact, even before the world itself was fashioned by the supreme
Artificer, we read that there was war [I 7 ] in Heaven b so difficult and * ftutafai,
unattainable has God willed that peace should be, for earth and "M'
Heaven, without an antecedent state of war. It is no occasion for
surprise, therefore, that in all ages since the world began, peoples,
kings, and other rulers have persisted in war even down to our time,
as described in the Holy Bible and the records of the Greeks and
3 Romans. And that there will be no end to this evil until the world
itself shall pass away, we are warned by divine utterance.
Planning, then, to write at some length on war and military
matters, I shall first consider the force and content of the word 'war'.
' See St. Mas-
CHAPTER II
WM; WHENCE NAMED
SYNOPSIS
1 Derivation of the word lettm ('war').
2 The form duellum.
3 The word feriwlles ('enemies').
4 Derivation of the terms milites ('soldiers')
and militia ('military service').
5 Derivation of the word exerdtw ('army*).
i POMPEIUS FESTUS* believed that bettum (war) was named from beasts
(behae\ as being better suited to beasts than to men. So Cicero, too,
1 [Le.Rome. TR.] * \Luc^Pkvsdia,I.g$:Fratenopriminadueruntsa^
3 [Apparently the reference is to St. Mark. TR.]
3
*[Dever-
A Treatise on Military Matters
[Part I
a [Cicero, On
Duties, I.
xxriv.]
b [De ver>
borum signifi-
c [Cicero, On
Ditties, I.
xxxvii.]
*[Rei Militant
Instituta,n,L]
says: 'Inasmuch as there are two kinds of contention, one through
discussion and the other through force; and since the former is appro-
priate for men, and the latter for beasts, we should have recourse to
the latter only in case we may not employ the former.'*
Again, Festus b says that the earlier form of the word was duellum ^
not implying activity of two individuals, but of two parties; 1 hence
enemies, too, were called ^mkz//<?.r, as persons persistently warring and 3
opposing. Thus in another place Cicero says : To a person who, strictly
speaking, was perduellis, our ancestors applied the name bostis, the
mildness of the term glossing over the ugliness of the fact; for in
earlier times the word bostis signified what 'foreigner' does to us.' c
And not inaptly would the word bettum be derived from the
adjective bettus, i.e. 'beautiful'; for an armed line drawn up in battle
array is splendid and terrible. Or perhaps it is so named, by anti-
phrasis, from its evils, as being not at all fair or beautiful; just as
Festus once more states that the word militia ('military service') is
derived from mollitia ('effeminacy') though another view was held
by the jurisconsult in Digest, XXIX. i. I, at the end.
Further, the soldier (miles) is named from mahm ('the evil') 4
against which he defends his countrymen; or from millenarius ('millen-
ary'), according to Digest, XXIX, i. I, at the end, where it is stated also
that the army (exercitus] derives its name from 'drill' (exercitium) 5
whence Vegetius assumes also that it should never forget from what it
is named. 4
[2] Again, according to Vegetius, the army is nothing else than an
aggregation of foot and horse brought together to wage war 8 which
is confirmed by the text of Digest, III. ii. 2,
nng:
quamiura
fierent.
CHAPTER III
WARS: WHENCE THEY ARISE
SYNOPSIS
i The woes of mankind have sprung from war.
WE must assume that wars originated among men either through i
the infliction or warding off of injury. For, to quote the exordium in
a Consilium of Paolo di Castro, 1 in that rude age before regulations
were established, each individual looked out for his own interests under
no regular code, but acting either through the king's forces (if there
1 [Conceiving duelhm to be derived from duo ('two'). But note the same interchange of du and
& in (bums and bonus ('good'), TR,]
Chap. Ill]
and Warfare
were a king) or even undertaking war at his own charges which it
was his right to do, both b7 the divine law and by the natural law and
the law of nations. Paolo there develops this idea at greater length,
And Baldus a held that all the woes of men have sprung from war.
* On Code VI.
i. i, oppo. i.
CHAPTER IV
KINDS OF WARFARE
SYNOPSIS
1 War is of three kinds.
2 Wars may be unjust on five grounds.
3 Warfare within and without,
4 Arms of the inner warfare.
1 BALDUS* declared that wars are of three kinds, namely for offence,
for defence, and for the recovery of things lost; and we may suppose
that he adopted this division on the analogy of the possessory interdicts,
which have to do with acquiring, retaining, and regaining possession.
For it was in regard to these that his discussion began in the first place.
2 Again, a gloss states that on five grounds wars become unjust:
(i) from the person concerned, as in the case of a priest; (2) from a
circumstance on account of which it is unseemly to wage war; (3) from
the occasion, if arbitrary and not urgent; (4) from the purpose and
intent, e.g. to requite with vengeance; (5) from lack of authorization.
[2'] Baldus also recognizes these five heads d ; andHostiensis enumerates
3 seven kinds of war. 6 Panormitanus, 1 however, follows the much simpler
course of recognizing but two types, lawful and unlawful.
There is also outward and inward warfare. It is of the former that
I propose to treat. Of the latter it is written: 'Man's life on the earth
4 is a warfare' 8 ; 2 and we are assured that it is from our lusts that wars arise
within us. h Soldiers (in this sense of the term) are exhorted by Paul to
put on the armour of faith in God, having on the breastplate of
righteousness, the shield of faith, the helmet of salvation, and the sword
of the spirit. 1 And once again he speaks of that breastplate of faith and
love, and of the helmet, the hope of salvation. 1
However, even this warfare, too, might be called outward; for
the same apostle warns us k that we wrestle not against flesh and blood,
but against the princes and powers of this darkness. But, waiving that
point, since it does not concern my present purpose, I shall now consider
first with whom rests the right to declare war.
1 [The reference to a commentary on Sext is obviously wrong, since Hostiensis (Bl. Henry of
Segusio) died in 1271, and the Liber Sextus was not issued by Boniface TO! until 1298. Possibly
some other commentator was intended, but his name has dropped out of the text. ED.]
2 [The word 'warfare' is made a marginal reading hi the King James Version. TH.]
b On Code III.
xxxiv. 2, no.
On Decrelum
II. xxiii. 2, r.
d Consilia, V.
439 (A& betlum
iustum).
Treuga et Pace,
and On Sext,
V.iv. i. 1
1 On Decretals
II. xxiv. 29,
col. 3,
James, iv [i].
.].
J i Thessttlon-
ians, v [8].
fc Ephesians, vi
[IS].
A Treatise on Military Matters
[Part I
a On Decretals
II, xiii. 12,
el, i.
* On Decretals
II, xxiv. 29,
col. 3.
c Ibid.
d Concilium
70.
XLIX. xv. 24.
rubric viii.
* Consitium
62, col. 2.
h Consilium
72, at end; and
again in Cwtti-
Juan 140.
CHAPTER V
WHO HAVE THE RIGHT TO DECLARE WAR
SYNOPSIS
1 Any independent ruler may declare war.
2 Venice, the common fatherland,
3 An independent people may declare war.
4 Enslavement and postliminy originated
with the law of nations, not in Roman
law,
5 A subordinate must consult his lord,
and not make war at his own charges.
6 A ruler may not declare war on one who
is subordinate to another, unless he first
declare the grounds to the overlord.
7 War may be declared in order to punish
and avenge injury.
8 Whether prelates may declare war.
9 A ruler, even of lower rank, may make
war upon an insurgent vassal of his.
10 'Insurgent 5 is not the same thing as
'enemy'.
11 Among Christians captives are not en-
slaved,
12 The law of nations does not apply to
brigands,
13 The law of nations does not apply to
an insurgent.
[3] .
INASMUCH as it lias been said above that, in declaring war,
authorization is required, it is desirable next to inquire who have
the right to declare war.
And without doubt a sovereign has this right. See Innocent* and i
Panormitanus, b who find illustrations in the case of the Pope and the
Emperor, and the Kings of Spain and France; and there is added a
supplementary note assigning this same right to the Duke of Milan,
since in his position the last named fills the room of a supreme ruler, and
has full powers like the Emperor. This was stated much earlier by Oldra-
dus, d who considers the subject at length, and recognizes a distinction
between the law of Heaven and the law of the courts.
Under the latter head he differentiates again according as the
person who declares war, and the person against whom it is declared,
are subordinate or not ; and in case there is a superior, he says the latter's
permission is required: otherwise the individual may proceed in his
own right, because there is lack of an administrator of justice. From
the point of view of the law of Heaven, he says that intent and the
occasion must be carefully scrutinized which conveys the hint that
a ruler should not undertake such serious business without good
warrant.
Bartolus 8 and Baldus* declared that the Venetians enjoy this same
right ; and Fulgosius* called the city 'New Rome 3 . Comensis h designates 2
it 'the common fatherland', adding that it is regulated, not by imperial
laws, but by a natural justice and self-evolved right. And not without
Chap. V]
and Warfare
warrant we too may call it the crown and glory of Italy; for single-
handed, even in the early days, it provided a strong and secure refuge
for the people of Italy against barbarian nations and plundering
and devastation, and to-day single-handed it preserves and maintains
Italian liberty and honour.
3 More briefly, it is my view that any people or nation living under
its own laws and at its own charges, and any king or other ruler who is
fully independent, may declare war at will and when occasion arises.
This was the position taken by Calderinus, 8 and it accords with the
view of Cardinal Cajetan. 11
Throughout the whole first decade of Livy we read that on this
basis the Sabines, the Faliscans, the Veientians, the Aequians, the
Volscians, the Samnites, the Latins, the Etruscans, the Tarentines,
the Lucanians, the Bruttians, the Gauls, and the Ligurians waged war
with the Romans; and that the Romans themselves went to war with
the Carthaginians, the Achaeans, and the Aetolians, with the kings
of Macedon, with Antiochus, and with Mithridates.
Angelus, therefore, is mistaken in his criticism of Bartolus, when
he says that if states which [3'] are under no higher authority go to war
with one another, their action will provide no basis for the right of
enslavement and postliminy, because authorization for making the
war is wanting; and, says he, let the man who holds to the contrary cite
a law in support of his position. But his instructor Bartolus held this
contrary view; and Aretinus d also sides against Angelus. But the state-
ment of the latter 1 might be saved if interpreted in the light of what
I shall say below in this chapter.
Aretinus, however, goes astray there on another point, when he
takes it for granted that the right of postliminy arose only between
4 the Roman people and its enemies; 6 for it is certain that enslavement
and postliminy are based on the law of nations itself/ And so no one
will assume that if an Athenian or Spartan captured by the Persians
returned to his people, he did not at once regain his former status
(or, in like manner, a Persian who was captured by the Greeks and
returned to his own people) though at that time there were no
Roman laws, and perhaps even Rome itself was not yet founded.
However, the statement of Aretinus might be saved by saying, as we
do of contracts, that though they belong to the law of nations they still
belong also, in their formulation and adoption, to the civil law of the
Romans; and as is said of the right of possession, which rests directly
upon the law of nations, but in its administration falls under civil
kw. See Bartolus and others. 8 The case could be strengthened by further
like considerations.
5 We should know, too, that if the party declaring war is under
higher authority, while the person against whom war is declared is
a Consilia, I,
De Treuga et
Pace, near the
beginning*
b Summa, on
word bellum,
at the begin-
ning, words
Principis
aidm nomine.
6 Disputations,
beginning
Renovate
d On Digest
XXVIII. i. 13,
col. 2, words
super secundo*
e On same law
Decretum, I, i.
9-
ill, at the
beginning.
8
A Treatise on Military Matters
[Part I
a On Feuds II.
XXIV. i, \ltem
qui dominum,
* On Feuds I.
V, i, col. i ; re-
peated in
chap, i, words
contra omnes.
o No. 38, On
Feuds, II.
XXVIII,
d Consilia, I,
483, begin-
ning :Mflg. D.
Nannus, no.j.
1. 12 [or 18],
penult col.,
words siautem
Treuga et Pace
(above dted),
Quid sit
iustum, col.4-
t On Reprisals,
qu. iii, in
second main
qu.
h On Decretttm
II. xxiii. 2. i.
1 See 2 Samuel,
x, xi, and xii.
I Consilia, I,
De Treuga et
Pace, col. 5,
words inter-
dum unus
domnus.
independent, the consent of the overlord is still required, as was held
not only by Oldradus, but also by Innocent and Panormitanus, in the
passages above cited.
And the reason for this is obvious and definite, namely, that the
over-lord be not slighted especially as the matter may concern him
very closely, in view of the fact that wars often involve the neighbours,
and because a lord is bound to defend his vassal against aggressors, and
to protect him from force and injury, as is stated by d'Isernia. a And
he must fight for the vassal even outside his realm, according to
d'Isernia again,* with de Afflictis, the latter venturing the stronger
statement that if a lord fails to do this he forfeits all his authority
of course, on the assumption that it is not permitted the vassal to
precipitate such grave business without consulting the lord.
Baldus, d too, states that on three grounds going to war without the
knowledge or consent of the lord is not permissible: (i) because the
use of arms is forbidden by the laws; (2) because wars are contrary to
natural right, unless there is need for defence; and (3) because territory
is ravaged which belongs to the lord by right of immediate [4] control.
So, says Baldus, if the vassal does not consult the lord, he loses his fief.
Yet Saliceto 6 declares that a subject, without consulting his lord,
may make war on a party that is independent. But, in view of what I
have said above, I believe this to be an error.
In like manner, it is the duty of one who declares war to appeal 6
to the lord of his adversary. And if this lord stands ready to see
justice done on the part of his vassal, there should be no war. For,
inasmuch as wars are waged to secure restitution, or to avert or even
to avenge injury, what need is there to fight, if justice and satisfaction
are offered ?
But, lacking this, recourse may be had to the sword. So Hostiensis
held/ and Bartolus;* and this view is supported by Decretum, II,
xxiii. 2. 2, with a gloss which finds a case in point in the King of
England, upon whom war was declared because he refused to see
justice done regarding certain law-breaking subjects of his.
And my remark just above that it is permissible to make war to 7
avenge an injury should not seem illogical, though a gloss* dissents.
For it all depends upon the nature of the injury and the character of
the reprisal, since otherwise that would have been an unrighteous war
which King David waged against the king of the Ammonites because
of the insult offered his envoys. 1
But if both parties he who declares war and he upon whom it is
declared are subjects, all the more certainly do we conclude that the
lord must previously be notified; otherwise they may incur the guilt
of treason, as Calderinus thought. 1 As a matter of fact, if a person wants
to chastise his own vassal, who is perhaps rather strong and heady, it
'are
Chap. V] and Warft
is the more prudent plan to consult the common overlord; see
Hostiensis. a So Bartolus held, b rejecting the contrary view of William de
Cuneo, (In this connexion, however, you must take into account what
is said in the following paragraph; and understand what has preceded
as referring to civil rulers.)
8 As regards ecclesiastical rulers, the case has already been covered
so far as the Pope is concerned. With reference to other prelates of
lower rank, the Doctors state that it is permissible for them to make
9 war, with the qualifications above noted and that it even is allowable
for them so to proceed against rebellious subordinates, because in such
cases they are regarded not so much as waging war but rather as enforc-
ing justice and exercising due authority. So Innocent.
This last, however, seems inconsistent with what I have said in a
previous paragraph, quoting the view of Hostiensis and Bartolus--
unless one were to say, by way of explanation, that a distinction is to
be recognized: (i) There is a call for open force and warlike prowess
(perchance on account of the strength of the insurgent), and then the
rule of Hostiensis will apply that the lord be consulted, especially if
this can be done without inconvenience [4^ (cf. Bartolus a ) ; or (2) the
issue is one that can be settled without risk of serious warfare, and then
the other view finds a place. So Lucas de Penna e and Calderinus,' who
adds, however, that in this case the superior and the vassal would do
better to submit their quarrel to the decision of referees.
Nevertheless to touch on this detail in passing it will not be
permissible for a prelate himself to participate in the fighting, even
when he is in a position to do so a point noticed by Innocent and
Panormitanus. 8 It will not be permissible, I say, for a prelate to join
in the battle or to fight, or even to direct his soldiers to slaughter the
enemy. He will, however, urge them to acquit themselves like men;
but if any member of the clergy, even in a just war, maims or kills a
man, his status is lost.
As for my quotation of the remark that he who takes up arms against
rebellious vassals is said not so much to wage war as to exercise his right
of control, this does not fit with the words of Bartolus, 11 who claims that
if the Emperor has declared war upon free states of Italy, say Florence
or Venice, these states are counted really enemies of the empire, and
persons captured are enslaved. 1
But since he takes it for granted that these cities are under the
empire and a part of the Roman citizenship, 1 1 cannot see how they
10 may come to be designated 'enemies 3 .* For 'enemy' and 'rebel' are two
very different things, according to the laws cited; 1 and I do not under-
stand how the rights of enslavement and postliminy could here apply
(for these are rights which are brought into play in dealings with
outsiders, i.e. enemies or foreigners 111 ), unless the Emperor shall have
IS69.64 C
a In the above
cited section
Quid sit
iustum, col. i,
words quid ergo,
and the final
words,
b On Digest I.
i. 5. qu- 1.
c On Decretals
II. xiii. 12, el.
3 ; and on II.
xxiv. 29.
d On Digest I,
i-5-
On Code XI.
xlvii. i, col. 9.
f ConsiUum i,
col. 4.
B On Decretals
II. xiii. 12 and
II. xxiv. 29.
11 On Digest
XLIX. xv. 24,
last col., words
tertio mode
indidtur lel-
lum.
1 Repeated on
Digest
XXVm.i. 13.
J According to
gloss on Digest
XLIX. xv. 24,
where Barto-
lus, too, com-
ments, cols, i
and 2.
k According to
I^.XLIX.
xv. 24, and L.
xvi. 234,
1 And tit. Qui
sint rebelles*
xv. 19, near
10
A Treatise on Military Matters
[Part I
On Decretals
II. xxiv. 29,
el. 3-
b On tit, Qui
sint rebelles,
gloss, word
rebellando.
'OnAuthenLl,
near the begin-
ning, word
antiquum.
d Consilia, I,
col. 5.
On Digest
XLIX. xv. 24,
at end of Cow-
f According to
flig.XLIX.v.
xlvii. 7, last
col.
&&r, Dig.
XLK. xv. 24.
i, col. 8, qu.
14.
xlvii. 7, last
col.
declared the parties 'enemies', as Innocent says* though Bartolus
declares b that if an insurgent state or people is taken captive, the
populace will not become slaves. He cites a gloss, which, however, I
think should be understood and qualified in the light of the above
statement of Innocent. But beware of taking Venice as an example; for
that state is not under the empire, as I have previously pointed out.
As regards the making of war by a subject upon his lord, Calderinus
had this to say : d The subordinate will do well to endure at the hands of
the lord an injury, be it personal (according to the word of the Apostle :
'avenge not yourselves, but give place to wrath'), or be it an injury
to property (according to the word: 'if any will sue thee for thy coat,
give to him thy cloak also'). But since these directions are admonitory
and not imperative, the subordinate may with strict right appeal to
the over-lord, or, this failing, to the Bishop. If these measures are
ineffective, it will be permissible for him to maintain his cause with
arms. Compare what is said on the sole chapter in Feuds, Bk. II, tit.
xxii, according with the text there, at end.
[5] But though I have noted above that independent states are n
as free to declare war as are kings and other rulers, yet I do not think
(if such should go to war to-day say, the Venetians against the Floren-
tines) that the rights of enslavement and postliminy would apply to
them although that was the view of Bartolus. 6 For it would be more
logical to count this a sort of civil war, in which the rights in question
have no place. 1
Hence Baldus* properly declares that the above view of Bartolus
is incorrect, and opposes it at length. Against it, too, is a gloss h which
states that if Faenza and Arezzo make war upon one another, they are
not for that reason called enemies (on this see Code, VII. xiv. 4, with
gloss and comment by Baldus). And there is a bearing on this subject
in the further statement of Baldus 1 that if two states go to war, even
though it be a just war, captives are not enslaved and hostages do not
lose status.
I do not think, however, that Baldus 1 was equally correct in say-
ing that if Saracens and barbarians and other foreign nations which
acknowledge neither Emperor nor Pope are at war with one another,
the saidrights of enslavement and postliminy have no place amongthem.
For I do not see what is to prevent these nations being free from
taking advantage of the law of nations, which is always operative and
belongs to every age.
However, the statement of Baldus might be sustained with 12
reference to a servile war as when the notorious Spartacus stirred up a
war among the slaves in Italy; or when an uprising in Africa was
headed by Tacfarinas, the Numidian, during the reign of Tiberius, and
by Matho and Spendius against the Carthaginians after the Second
Chap.V] and Warfare n
Punic War. See the accounts in Plutarch in his biography of Marcus
Crassus,* conqueror of Spartacus; and in Cornelius Tacitus. The latter * [viii ff.]
reports as follows : b When Tacfarinas demanded a territory for himself b [4&i Hi.
and his army, the Emperor was indignant that a deserter and bandit lxx111 '-'
should claim the privileges of an enemy, whereas not even Spartacus
(though devastating an Italy distracted by dangerous 1 wars with
Sertorius and Mithridates) was allowed to make terms of surrender.
13 From the above quotation we gather that with this sort of bandits
and insurgents or deserters, rights of war and of nations and compacts
of peace have no footing; and this will be shown in more detail farther
on. In our own age, however, we have known a certain ruler to follow
another course in a war he made upon an insurgent who had deserted
him, counting himself lucky if matters could be adjusted on the basis
of agreement and compact, with gifts and honour for the deserter
thrown in!
Add, finally, that if war is declared against a person who shows
himself ready to abide by the law and the award of referees touching
the matter of complaint, warlike proceedings should be stopped; for
war ought to be a court of last resort, as Calderinus has stated.
et simliter.
[51
CHAPTER VI
WHO MAY RENDER MILITARY SERVICE, AND WHO NOT
SYNOPSIS
1 Derivation of the term levy 3 (delectus).
2 Nature of the Roman military oath.
3 Men of the decury and of the century.
4 Military brands.
5 Register of the soldiers*
6 Men not entered in the register do not
enjoy the privileges of soldiers.
7 Veterans should not be enlisted as
recruits.
8 Slaves may not enter the service.
9 Eleven military departments,
10 What are frimicerius, secunfacerius,
tertwcerius, and quartocerius.
1 1 Primicerii in every military department.
12 Rating in the departments,
13 New recruits should not be given pre-
ference over veterans.
14 Roman soldiers recruited from all
nations.
HAVING determined who have the right to declare war, we must
now consider who may engage in war. And, by way of preface, it
should be stated that when the Roman Empire was in its prime enlist-
ment for service could not be made at random nor according to any-
one's caprice; rather, men were chosen (deligo) in conformity with
1 [For magnas read flwgww. TR.]
12
A Treatise on Military Matters
[Part I
a On Auihent*
XVII, penult,
section.
XXII
[xxxviii],
^ Ret MiUtaris
lnsttiuta,ll.v,
at the end.
d On Decretum
II.i.i.97.
6 On Authtnt.
XLVIII, i,
gloss, word
LXXX.L
LXXXIL xiii.
andxii;
LXXXV.iii,
word
XX, near the
beginning.
2WAKK-
torn Instituta,
II. v.
certain fixed regulations, whence also the term 'levy' (delectus). On i
this bears a gloss, a according to which men to be taken into the service
were subjected to an examination. Compare Code, XII. xxxiii, i, where
it reads : 'If you desire to enlist, present yourselves to the officers who
are commissioned to examine.'
They took oath, moreover, to certain things, among others (as the
glossator holds) that in the defence of the state they would not shrink
from death; compare Digest, XL. ix. 31, where another gloss calls for
six pledges in the case of the prospective soldier. And that there was 2
another form of this oath is shown by a statement of Livy, b who says,
The soldiers then for the first time took an oath administered by the
military tribunes to the effect that they would gather at the call of
the consuls and that they would not withdraw without orders. For
up to that time there had been nothing but a simple military oath.
'And when they had gathered for organization by decury and 3
century the horse in decuries and the foot in centuries, that is to
say, by tens and hundreds of their own accord they took oath among
themselves that they would not retire for fear or flight, and that they
would not fall out of line except to secure a weapon, or to strike down
an enemy, or [6] to save a citizen, This formulation, developed through
voluntary agreement among themselves, was taken up by the tribunes
and added to the officially administered oath, 5 So Livy. 1
Still another form of oath will be found in Vegetius. c For the men
swore in the name of God and of Christ and of the Holy Spirit and by
the majesty of the Emperor, to whom, says he, loyalty and devotion
must be shown as if to God in the flesh; they swore, I say, that they
would do with a will whatever the Emperor should order, and that
they never would desert the service, or shrink from death in defence of
the Roman state.
Again, the soldiers were tattooed with certain marks or a brand. 4
See Code, XL x, 3, on which Lucas de Penna says that this marking
was called 'belt' (cingulus), citing the Archdeacon. d But, on the other
hand, Accursius 6 explains 'belt' as designating an honour and, in fact,
a military rank; and in other places 1 he interprets it as an office; and
at still another point he defines: 'belt, i.e. sword', with reference to a
word of our times, though from the very text on which he comments
it is clear that the reference is to a mark of distinction which the
Emperor allowed those to adopt who had completed an honourable
term of service, On this see also Code, XII. v. 5.
But the tattoo marks or brands on the soldiers were made by
puncture, burning, and staining, as Vegetius records.* If this practice
were followed to-day, it would be easier to detect deserters.
Finally, the men were distributed among the divisions of the
1 [Modern editors arrange and understand this text very differently. TR.]
Chap, VI]
and Warfare
5 soldiers and enrolled in the register. See Digest, XLIX. i. 42, where it
6 is stated that even an accepted recruit, already travelling at public
expense, if not yet enrolled in a military division, 1 cannot claim a
soldier's privileges.
It will not be a case of straggling if we now consider what
procedure, and what care and diligence the official regulations required
in the enlistment of soldiers. And, first of all, care was taken in select-
ing and assigning recruits; hence a separate title is devoted to them
7 in the Code* where b is the Emperor's order that no vagabond or
veteran or assessed person be admitted to the status of recruit. (This
is noteworthy, as contrasted with the practice of our day, when,
on the enlistment of new regiments commonly called 'groups' or
'companies' many are enrolled from the membership of other older
8 regiments because of the prospect of new money.) Slaves, too, were
forbidden to enlist as recruits, with a penalty of a pound of gold against
the recruiting officer.
9 ' There were, moreover, eleven departments in which recruits were
trained, 4 some of which are enumerated by Lucas de Penna. 6 Several
privileges were theirs, among others that the Counts (these were the
heads of departments) might not flog them nor reduce their rating 1 ;
and further [6'] that after finishing the appointed time of service they
should arrive at the rank of primicerius.
Let me say in passing that there were both primicerii and secundi-
cerii, 2 and even tertiocerii and quartocerii. To theprimicmus belonged
the oversight of the secretaries, and the record of all appointments
and offices, both military and civil. He looked after the departments
and divisions. He had no suite, but an adjutant from the secretarial
department. He had special regalia, as you will see in a work of unknown
authorship dealing with the civil and military officials of the Romans
and appended to the treatise by Alciati. That document Alciati him-
self calls A Report to the Emperor Tbeodosius; of it I shall have more to
say presently.
In the Code a special title is devoted to these officials, g and Lucas
de Penna there says that there were also primicerii of the secretaries
(not ordinary secretaries, but persons who then served in the imperial
court under that name). And there is mention of them also in Code,
XII.xl.ii.
And since, as I have said, the office ofprimicerius is an advancement
of the better kind, it is not strange that there were primicerii in every
branch of the service. See Code, XL x. ^, on the armourers. And in Code,
XII. xxiii. 7, the Emperor enumerates many. Furthermore, in Code, XII.
xxvii. I, the Emperor speaks of a primicerius of surveyors, who, after
two years, was transferred to the department of the agentes in rebus.
1 [Probably^oshouldbereadforttrw.-TK.] * \Fors
10
a XII. xliii.
b In law i,
xliii. 2.
Code,*XlI.
xliii. 3.
On Code,
rubric, XII.
xi.
* Cafe, XII. xi.
s Code, XII.
vii.
* Tract. De
Romnis, Pt.
I, no. 32.
b Ibid., no. 34,
c Commentary
on the three
last books of
the We,
< XI. X. 2.
10, is, and 14.
1 4 A Treatise on Military Matters [Part I
Of the primicerius and secundicerius, Joannes Pyrrhus writes as
follows:* 'The primicerius and the secundicerius were named from the
waxen tablets which they had'; and a little farther along he adds b :
'But with regard to the primicerius who was at the head of the first
division of secretaries, and with regard to the secundicerius, note further
(as is shown in all good authorities) that the 'first wax' (prima cera)
was the tablet on which the testator's name was written, the 'second
wax' (secunda cera} that on which the name of the heir was written.' 1
I find primicerii of nearly every department which served under
the Emperor. (But I think the term must be understood in a sense
far different from the two just quoted; and while frankly confessing
that I do not fully understand the force of the word, I still do not
hesitate to say that I am not satisfied with the explanation given by
Pyrrhus.) That there were primicerii in all departments is attested n
by Code, XII. xxiii. 7, 2 ('the primicerius of every department'),
Alciati treats of the primicerius more lucidly than any other I
have consulted, and he quotes words of Cassiodorus d by which (as he
claims) he demonstrates the honour of that office. But to me these
words seem to fit better the count of private affairs or the count of the
royal wardrobe, among which officers, too, perhaps primicerii were
included; for, as I have said, these latter were found in every depart-
ment. Or perhaps those words of Cassiodorus refer to the count of the
privy treasury. (The degree of the dignity and power of this officer is
demonstrated by these same [7] words of Cassiodorus, and also by other
evidence which I shall supply later, when discussing the count of the
private treasury.)
Furthermore, the statement of Alciati that the primicerius is chief
not only among the secretaries but also in other departments does not
accord with a passage in the Code on armourers, 6 where a primicerius^
after two years' service, is given a position among the protectors of
that same department which surely must signify an advancement in
rank. Compare the Code on palace guards and protectors/ where a
primicerius, after reaching the office of tribune, enjoys 'very highly
distinguished 32 dignity in that department. However, Alciati is sup-
ported by the text of Code, XII. xxix. 2 ('those who, after finishing
the term of service, reach the grade of primicerius^i so Code, XII.
xvi. I and XII. xxvii. i.
The primicerii shared the exemption of counts that, in civil cases,
they were answerable only to the directors of the palace guard. 6 Other
privileges they had, too; for which see the Code?
1 [Horace, Satires, II, v. 51 ff. speaks of the names of both testator and heir as being on the first
page (prima cera}. If primicerius is derived from prima cera, the latter phrase should probably be
interpreted 'the top of the page', the primicerius heading the list, TR.]
a [The designation spectabilis (Very highly distinguished') indicates a grade below ittustris ('illus-
trious 3 ), and above darissimus ('highly distinguished'). T*.]
Chap. VI]
and Warfare
12
To resume, there was grading in the military departments, and
the^new recruits ranked lowest of all. See Code, XII, xliii. 3, where a
13 praiseworthy reason for this ruling is advanced, namely that beginners
be not put above those whose claims are supported by careful attention
to business and by length of service. At the present time, commanders
pay little attention to this rule, conferring rank on the basis of a man's
birth and family rather than upon his military worth.
14 We should know, further, that in the earlier period men from any
nation which was under the empire were enrolled in the army and
assigned to divisions, and that on the score of valour and bravery they
were advanced to the loftiest and mightiest positions even to the throne
of empire itself, as we read of Maximinus, the Thracian, and Alexander,
the Syrian. And in Cornelius Tacitus* we are told that the cause of a
revolt among the Thracians was that they were unwilling to submit to
draft, and to allow all the stoutest men of their nation to be enrolled
in the Roman army.
a [Annals, IV.
xlvi. 2.]
[7']
CHAPTER VII
WHO ARE EXCUSED FROM MILITARY SERVICE; AND THE TIME OF LIFE
APPROPRIATE FOR THIS
SYNOPSIS
1 Boys are excused from military service.
2 Old men are excused from military
service.
3 Boys and old men are not excused in
times of great stress.
4 The period of life appropriate for military
service,
5 Colonists are excused from military
service.
1 OLD men and boys do not render military service except in times
2 of urgent need. Thus in Livy* we read that the Dictator Cincinnatus
ordered all those who were of military age to present themselves; *[iii.
3 whereas, when the Romans were exerting themselves against Veil and 3 'J
a levy was held, not only were the younger men enrolled, but the
older too were compelled to enlist to defend the city 1 meanwhile; and
such another order was issued by Camillus, as related by Livy. c Also,
after the disaster at Cannae, the Dictator Marcus Junius* enrolled for
service young men of seventeen, and even mere lads, so Livy says. d ^
4 This age of seventeen years was rated by Gaius Gracchus in his
laws as sufficing for military service, 6 as well as for legal action. Hence
also it is stated in Livy 1 that all were enrolled who had strength
xxm
*V[x. 4 ];and
1 [i.e. Rome. TR.]
2 [Belli has Decius lunm Dictator, but Livy has M. lunius, which is probably correct, ED.]
d XXIIpvii.
9]-
[Cf. Plutarch,
Gains Grac-
chus, v.]
'XXV.[v. 7
ffj.
i6
A Treatise on Military Matters
[Part I
a XXVII [xi.
tOiiFfl^Bk.
II, tit. LIII,
chap, i, near
the beginning,
c Constitutions
of Frederick
Consuetu-
dinem, under
title De quali'
tate et aetate
pugnantium,
at the end.
d See Consti-
tutions of the
same Fred-
erick, begin-
ning Minorum,
under title De
restitutione
[xxxviii. 3],
XVL&
5;XII, xxriv,
entire title.
viii, 23. 3,
1 Decretum, II.
viii. 23. 5,
sufficient to bear arms, even though they were below the military age;
and it was ordered, in the case of those who had entered the service
under seventeen years, that their campaigns should be reckoned just
as if they were older. 1 In fact, after the above-mentioned disaster at
Cannae, those above sixteen years who had not served in that campaign
were black-listed, and reduced to the poll-tax class. 2 Thus Livy. a
However, it is stated in a gloss 15 that a youth under eighteen years
is too young to fight; but the reference is to duelling. Again, an
enactment of the Emperor Frederick states that men who are above
sixty years and under twenty-five are not bound to serve in person
though this does not fit with the laws of the Lombards, according to
which a youth is called a minor only up to the eighteenth year. d
Livy records, further, 6 that the colonial coastguard, which enjoyed 5
a formally attested exemption from military service, was nevertheless
once forced to enlist; whence, too, we learn that, in case of pressing
need, no exemption holds, formally enacted though it be. For necessity
knows no law.
CHAPTER VIII
WHO MAY NOT RENDER MILITARY SERVICE
SYNOPSIS
1 Persons of uncertain status are excluded
from military service.
2 Traders are excluded from military
service,
[8] 3 The clergy are excluded from mili-
tary service,
4 The weapons of the clergy are prayers
and tears.
5 The clergy lose status if they take up
arms.
6 At the present time even bishops engage
in war.
7 Heretics are excluded from military
service.
8 Farmers bound to the soil are excluded
from military service.
9 Disreputable persons are excluded from
military service.
MEN were not excused from military service, but debarred from it, i
if their status was unsettledwhether they were appealing for freedom
from a state of slavery, or, on the contrary, their right to freedom had
been called in question. So also those who were ransomed from the
enemy and had not yet reimbursed the person advancing the money,'
Traders, too,, were debarred ; g as also the clergy, of whom (as of 2
himself) Ambrose declared: 'Soldiers of Christ need no weapons and 3
armour of steel; on the contrary' (says he) 'sadness, weeping, tears, and 4
prayers were my defence against men of war, 3h Hence it is decreed 1
that if the clergy take up arms with any party whatsoever, they lose 5
1 [i.e. final dismissal would come that much earlier. TR.]
2 [For aeranas read aerarios. This punishment involved serious loss of civic rights, TR.]
Chap, VIII]
and Warfare
status. 31 Furthermore, it is said 13 that it is the one business of bishops
and soldiers of Christ to give attention to prayer. Yet among generals
6 and leaders of the French we have seen bishops engaging in warfare,
and that too in savage and brutal fasliion,
7 Heretics, also, were rejected. Likewise persons who attempted to
enlist with ulterior motives, e.g., to escape civic responsibilities. So
8 farmers bound to the soil who flee the country districts; courtiers who
desert the courts; and slaves who run away from their masters. Like-
wise persons engaged in litigation, who hoped thus to render themselves
more dangerous and costly adversaries. On all these classes see the
Code* and Digest.*
9 Finally, all disreputable persons were excluded from the service. 1
But there is little point in writing this to-day, when the most vile and
debased of all classes of men flock into the service as if to a haven of
refuge.
[8']
CHAPTER IX
ON THE COMMANDING GENERAL
SYNOPSIS
1 Eunuchs put in command of armies.
2 Narses brought the Lombards into Italy.
3 The office of commander.
4 Leave of absence,
5 Leave of absence is given very sparingly
to the soldier,
6 Soldiers at large without leave should be
arrested by the governor of a province,
7 Soldiers away from the colours, even on
leave, are not counted absent on state
service.
8 Xenophon, in the Cyropaedia, portrayed
an ideal ruler.
THERE need be no query regarding the choosing of a commanding
1 general, since such appointment is made according to the will of the
Emperors, who at times have set over Italy and the armies even
eunuchs, as in the case of Justinian's appointment of Narses. (This is
the Narses who, on the recall of Belisarius by order of the above-named
Emperor, put an end to the war, and to the rule of the Ostrogoths in
Italy, as described at length by Procopius, private secretary to the
aforesaid Belisarius. And yet Narses rendered no great service to Italy
2 or the empire in driving out the Ostrogoths, since he brought in the
Lombards, a more cruel and wholly barbarous people, for the purpose
of wreaking vengeance upon the Empress, 1 who had boasted that she
would reduce him to the carding of wool and house work.) 2 Conse-
quently, rules for selecting a commanding general have little or no
utility for us in these days.
' [Theodora (d. 548). The story is to be found in Procopius. ED.]
* [Le., make a woman of him. TR.]
1569.64 r>
a Repeated in
Deaetwn, II.
viii. 23. 6.
b Decretum, II,
viii. 23, 19.
6 Code, I. v. 3.
d XII.xxxiii.2
and 3, and the
whole title.
e XLDLxvi.4,
8.
xvi. 4, 7-
i8
A Treatise on Military Matters
[Part I
XLIX. xvi,
12.
xvi;' and in
Code, XII.
xvii. 3.
c XLVIII.iv.4.
* See Dig.
XLIX. xvi. 12.
e [Gallic Way,
xxxv. 13,
However, Marcianus* 1 has written not a little concerning the duty 3
of this officer, stating that it has to do no less with establishing than
with maintaining discipline. Wherefore, he also advises that the
general be very sparing in granting leave of absence, i.e., permission 4
to go away somewhere this being the sense in which the term is used
throughout the title cited.* So good authors employ it; and so in my
native land they commonly use this word (commeatus) for the permis-
sion which servants ask of their masters when they want to be away.
But it is found in another meaning in the Digest?
And there is no mystery as to the reason why leave of absence 5
should be granted to the soldier very sparingly, namely, that he
should not stray away from his colours and the army. And it is fitting
that leave be granted for only a very short space of time; for it is not
permissible to send a soldier to hunt or fish. d Hence in Caesar we read
that he expressed displeasure because companies had gone out to forage
[9] against his orders; for, he said, it was not right to give the enemy
an opening to inflict even the slightest injury. 62
Moreover, it is not allowable, either, that a tribune or even the
commander himself should send soldiers away from the colours to
transact private business for him; and a fine of five pounds of gold was
imposed if he transgressed the rule. 1 In fact, even if for good reason he
sends a soldier to the Emperor himself, the man is directed to present
himself immediately to the court officials, whose business this is, and
to communicate the reasons for his coming, so that he may have early
opportunity to return.
The provincial governors are directed to arrest and imprison 6
soldiers who are at large unlawfully and without leave of absence, and
to notify the Emperor himself, who will indicate what should be done
with them. For both points see the Code. 9
This principle that the soldier should not straggle and stray is so 7
emphasized that even if he is away on leave, he is not regarded as
absent in the service of the state.* I am ashamed to confess how this
rule is flouted at the present time, and how unrestricted is the soldier's
licence to be at large in fact, even to desert and to join the opposing
party. But in those earlier days so much care was exercised that the
soldiers should have to do with nothing excepting arms and warfare,
that they were forbidden to purchase land in the province in which
they were serving, whether in their own name or in that of another,
the idea being to prevent them from neglecting the state's business
through their interest in agriculture. This matter will be treated more
fully later.
Any one who wishes to know more of the duties of a commanding
1 [The citation is from Macer rather than from Marcianus. TR.]
3 [The interjection of fasti into the sentence here forces the interpretation a little. TR,]
Chap. IX]
and Warfare
general should turn to the jurisconsults Bartholomaeus [Caepolla] of
8 Verona* and Lucas de Penna; b and to Julius 1 Frontinus, and to
Xenophon in the Cyropaedia, where, in following the development of
a king and general from the very cradle up to old age, he draws an ideal
picture rather than a portrait.
CHAPTER X
BRANCHES OF THE MILITARY SERVICE; AND ON THE UNARMED OR
CIVIL SERVICE
SYNOPSIS
a Tract. De
Imperatore
Mitttttm
XXXV. II.
IV.
1 The unarmed or civil service.
2 The armed service.
3 Soldiers of the civil service are not exempt
from the dust and toil of the camp.
4 Chamberlains of the Emperors.
5 Secretaries of the Emperors.
6. Silentiarii.
7 Silentiarii; why so called.
8 Private secretaries,
9 Silentiariiy i.e. counsellors of the
Emperor.
10 Sikntiarii are 'very highly distin-
guished'. 2
11 Sikntiarii', the same as the imperial
decurions.
iz Silentiarii kept the Emperor's night
watch.
13 Palace guards. And on these see below,
up to No. 16.
[9'] 14 Protectorts.
15 A primicerius at his death passes on to
the heir the salary of the current year,
and also of the year following.
1 6 Praepositus laborum, 3
17 Clerks of memorials.
1 8 Historiographers.
19 Antiquarians.
20 Assistants.
21 Libellenses.
22 Proximi; and why so called.
23 Mdloproximi.
[10]
1 THE military service of the Romans was divided into unarmed or
2 civil service, and armed service. For the Emperor mentions the
1 [Belli has Fla. Frdt. de n ml. li. iiij] but this is probably an error for Satus Julius Frovtinus,
Strategemata. ED.]
2 [See note 2, on page 14. TR.] 3 [There is confusion here between Idbarum and labmmt. TR.]
* [For Metate read Metaii; but see note 2, on page 24. TR.]
24 Accountants.
25 ActuariL
26 Chartularii.
27 Scriniarii.
28 Antiquarians.
29 Agentes in reins,
30 Directors of the agentes in rebus.
31 Censudes.
32. Palatini of the fiscus.
33 Treasurers.
34 Counts of the treasury.
35 Palatini of personal accounts.
36 Stratores or statores ?
37 Castrensiarii.
38 Ministeriani.
39 Decani.
40 Cornicuhrii.
41 Secret police.
42. Measurers.
43. Metate*
44 Aides.
45 Cohortales.
46 Armourers.
47 Collectors.
48 Pleaders are in this service.
49 Accountants.
50 OpinatoTfSj or opimatores, or options: I
Which is the better reading ?
51 Tellers.
52 All who serve in the Emperor's court are
said to belong to the military service.
20
A Treatise on Military Matters
[Part I
Code, XII. v.
2, 4 and 5.
i and 2.
c Following
Lucas de
Penna on
Code, rubric,
XII. vii, and
on Code XL
liv. i.
xvi. 5.
e On Code,
rubric, XII.
xvi,
<OnCodeV.
* See text ibid.
* Cafe, XII.
xvi, i and 3, 4.
' Cafes, XE
xvi. i.
3 SeeCo&XII.
xvi. 2 and 3,
k Law 3, just
cited.
i Cafe, XII,
xvii. 4, and the
whole title.
xvii. 2.
* Ibid., i.
rubric, XII.
xm
unarmed service in Code, XII. xii. I, 1 and refers to it as 'clerical' in
Code, XII. xix. 8 and 12; ibid., xxx. i, where it is stated, further, that 3
those are no strangers to the dust and labour of the camp who attend
the Emperor's standards, and who undergo multiplicity of travels and
the hardships of campaigns, This unarmed service, again, is sub-
divided into almost innumerable classes, some of which I shall review.
And, among the first, I mention the Emperor's chamberlains a , 4
along with the secretaries. 1 ' (But these last I would not have you 5
identify with the persons we commonly call 'secretaries' , as I have
already indicated above.)
Add the silentiarii, a name which I should fancy derived from the 6
word 'silence' (silentium), just as we call those 'private secretaries' 7
(secretarii) who handle the confidential business (secreta) of their 8
masters.*
Accursius, 6 however, claims that they all are counsellors of the Em- 9
peror, and the Doctors generally agree. 1 But if that were the fact, they
would be rated as 'highly distinguished' and not as 'very highly
distinguished', 22
These sikntiarii, after a continuous service of thirteen years, gain
even 'illustrious' senatorial dignity. 11 Moreover, the Emperor refers to 10
the silentiarii as 'very highly distinguished' in Code, XII, xxviii, 30,
3, where Accursius is of the opinion that they are private secretaries.
In the rubric and text of Code, XII. xvi, they are classed with the n
Emperor's decurions; and, after finishing their service, they were
rated among the 'illustrious'; 1 and they enjoyed other distinctions 1 .
This, however, applies only to thirty suentiarii and three decurions*, 12
and that too if they have served on the night watch thirty years
(another reading has thirteen years). Hence I am led to think that
their duties had to do with keeping watch over the Emperor. But
Alciati says that they are officials concerned with maintaining silence
in the palace.
Next we add the palace guards and protectores. 1 There was a 13
department of each of these, headed by a primicerius and a tribune,* 14
who were 'very highly distinguished' like military commanders. The
others following them, up to the number of ten, are called 'highly
distinguished', and thus are on a par with governors. 11
[10'] What the palace guards are, and what the protictom, is set
forth by Lucas de Penna, the palace guard comprising those who
serve the Emperor with no other special name or title, Alciati, however,
thinks that they were persons who handled the Emperor's confidential
business, while the protectom guarded his person both ideas being
derived from the etymology of the names. That they served in the 15
cavalry division he shows by Code, XII. xvii. 4, where it is further
1 [Apparently a false reference. TR.] 2 [See page 14, note 2, TR.]
Chap. X] and Warfare 2 1
ordered that if a man, who has risen to the rank of secundicerius and
who is looking forward to the office of primicerius for the following
year, is pre-empted by death, his heir shall be the recipient of the
salary and the emoluments even of the service as primicerius in prospect
for the following year.
However, the Doctors generally interpret this law differently,
assuming that it was one and the same office that the individual was
holding and to which he was looking forward in the following year.
And they assume that there is an anomaly in this case, in that the
heir receives the salary not merely of the year begun (which is seen, too,
in Digest, I. xxii. 4), but also of the following year, which is nowhere
found in written law, except in the above passage.
I have an idea that there were protectores in many departments,
counting it a general official title, and not a specific term. This is
gathered from Code, XL x. 2, where the Emperor promotes a primi-
cerius of the armourers, after two years of service, to a position among
the protectores of that division, However, the Doctors there interpret
far differently.
In a letter a to one of these protectores if the document be authen- Beginning:
tic St. Jerome writes, exhorting him to spurn worldly military service j^P^
and to enter the service of Christ, saying: Ton who are a protector of
others, shall begin to have a protector in Christ.' Accordingly the name
was given in recognition of fact ; just as we learn in regard to 'defender'
in Code, I, Iv. 5.
The palace guard was constituted, not on the basis of a count's
selection, but on the basis of rating in the army and service of five years. 6 b Code, xn.
16 To this civil service belonged also the praepositi laborum, 1 perhaps lf near
so named because they were made by the Emperor to be participants
in his cares and toils, being such as the Pope to-day names cardinals,
though Lucas de Penna explains otherwise. But I would not have you
think that they are put on a level with cardinals; for they are merely
n i i i i ii rt AVUL.
highly distinguished'. 2 < code, xn.
J 7 Add also the clerks of memorials and other imperial documents, 6
1 9 all of whom had special titles and ranks and positions. For they were
20 known variously as historiographers, antiquarians, assistants, 3 libellenses,
22 proximi, and melloproximL* m i' and
23 Alciati declares that the melloproximi are next in rank to tht proximi, m ' I4 m 7 '
and offers no further explanation. And although Accursius 8 thinks that * On Code,
the proximi were so named because they stand close to the Emperor, T nc '
we must assume, however, [11] that the name designates a service; for
those who served two years in the secretarial department attained the
rank of proximi', afterward this period was shortened to one year. 11
1 [There is confusion here between labarwn andZa&ofm TR.] 2 [Cf. page 14, note 2. Ta,]
3 [Supply <ri. ED.]
22
A Treatise on Military Matters
[Part I
xix. i.
>cfe,
xix, 8.
*Rei Militant
InsiiMa, II.
xix.
cw^xn.
xix. 12, 3.
1 On Code,
rubric, XII.
xx.
2, 3, and 4.
fcCo^
xx. 5.
iC^
4, 5* and 6,
They are rated with the deputies of governors and with military
commanders; 1 and at the end of their period of service they rank with
cabinet officers,* having attained no special distinction; for the private
business of the Emperor (see reference) is put into their hands which
indicates what the nature of their office was.
And other titles were not wanting: numerarii, actuarii, chartularii, ^
scriniarii (also called exceptores), and antiquarians. The last-mentioned 26
collected items of antiquarian interest for the sovereign, as it is written %
in the Book of Esther* that Artaxerxes (otherwise Ahasuerus), being
unable to sleep, ordered records of the chronicles to be read to him.
And benefit resulted therefrom to Mordecai.
The duties of all the above I think were very similar, though they
are listed under different headings, the first under the rubric of Code,
XII. xix, and the others under that of Code, XII. xlix. And a person
would not go far astray, if he included them even in the armed service;
for it is of them that Vegetius d has this to say: 'Moreover, in the case of
certain soldiers ability to write and experience in accounting is required.
For a record of the whole legion (both of the camp followers, and of
the fighting men, and of the moneys) is daily entered in the books/
And from these records (acta) and accounts (mmeri), he says, the men
acquire the names actuarii and numerarii.
They kept a record, too, of the night watch and outpost duty 1
which the soldiers perform in turn by centuries (in order that none be
burdened more than others). Likewise they recorded the names of
those who had performed their part, or service (as we say to-day),
making note of the leaves of absence granted to the men, to prevent
them from straying at will these leaves of absence being allowed only
for very good and sufficient reasons. Thus Vegetius.
As for assistants, you will find them listed among the 'highly
distinguished 3 . 8 How many of them there should be in the court
secretarial service is stated in Code, XII. xix. 13 and 15, 5; where
you will observe also to which of them it is allowed to nominate others
in their room.
To the service, too, must be reckoned the agentes in rebus, whom 29
Lucas de Penna* held to be officials who presided over public business
entrusted to them. These also have distinctive titles, number, and
honour. 8 And much more must be counted in the military service the 30
directors of these agentes in rebus? so also their chief. 1
It was a prerogative of theirs that no military person could be
forced to appear in court without this chiefs warrant, and that pleaders
of cases should not bring action against any one either, without consult-
ing him, 1 [II 7 ] And all summonses, issued against any one whomsoever,
even were the person of senatorial rank, had to be handled by these
1 [For angarias read agrarias.Tk]
Chap. X]
and Warfare
31 chiefs ; though other business might be carried through by the censudUs.
So it is ordered in Code, XII, xxi, 2, though Alciati interprets otherwise.
These chiefs, finally, receive marks of distinction when they have
begun 1 to be numbered among the honourables, being rated with the
vicegerents. (This favour was shown also to assistants not to all, but
to those who had served under the magister officiornmf) The service of
the excef tores was different from that of these chiefs, and even more
honourable, as we gather from Code, XII. xxiii. 5. And regarding the
duties and rating of all these persons see Code, XII. xxiii. 7.
32 Add also the palatini of the fiscus, among whom were numbered
33 treasurers, counts of the treasury, and their staffs.* These too were
35 differentiated in rank, number, dignity, and title. Again, thepalatini
of the Emperor's personal accounts belonged to the service.*
36 The same is true of the stratoresm the explanation of whose
functions a gloss and Lucas de Penna 6 become involved in difficulties;
and the same is true of another gloss. 1 But we should read rather
statores persons whose business differed little from that of couriers or
messengers, such as to-day we designate 'court bailiffs', and who serve
summonses by order of the judge. Cicero speaks of them in a certain
letter to Appius. 82 And the glossator on Digest, I. xvi. 4,* identifies
them with what are commonly called 'orderlies', a service much like the
one I have mentioned.
However, Accursras is wrong in assuming that the above-mentioned
law prohibits the use of statores, while Code, XII. xxiv. I, allows it. For
in that first cited law 1 the proconsul is forbidden, not to have statores,*
but to maintain special statores; and he is directed to utilize 4 the service
of his soldiers in this capacity. (Yet a large proportion of the soldiers are
forbidden to allow themselves to be sent into the province of their
birth or in which they have established a home, with a view to executing
a commission there, being liable to expulsion from the army if this
rule is violated. 1 )
On the other hand, Alciati thinks we should read stratom, persons
who, he says, have charge of paving the roads. Or, he thinks the word
may stand for letter carriers', whom he judges to differ little from
mounted couriers, commonly called 'the Emperor's riders', to whom he
says horses must be supplied successively by the provincials to expedite
their journey.
37 In the service there were also castrensiarii and mimsteriani* a
38 term which Alciati explains, understanding it of soldiers assigned to
service at court. And from among them, as I think, was drawn another
1 For eeperint read coeperint.Tb,]
2 [This letter, however, is not addressed to Appius. TR.]
3 [Not statores, but stratores (as if from sterno, 'cover 1 ). TR.] t t
* [The difficult reading here is illuminated by the wording of the Digest (me eorum mHiies immsttno
in prownciisfungimtw). TR.]
xxiii, 2,
c<Kk,xn.
xxiii. 7,
d Cafe, XII.
xxiii. 14.
On Code,
rubric, XII.
xxiv.
io ; near the
s Letters to
Friends [II.
xvii. i],
1 Dig. L xvi. 4.
^On these see
Code XII.
xxv. 3.
A Treatise on Military Matters
xxvi, i and 2.
iReiMM-
taris Instituta,
II,viii,andxiii,
near end.
c ReiMilitari$
Instituta, II,
vii,and IILviii,
* On Cob,
rubric, XII.
xxvii.
[Part I
class of soldiers whom the Emperor calls decani (as commanders often) 39
and frimicerii* [12] or perhaps they were officers of the ministeriani^
and not a separate division. According to Vegetius,* decanus is another
name for 'head of the mess', representing the command of ten men.
Add also the cornicularii, which I take to be a general term for 1 40
'adjutant', as Alciati states. Perhaps they were identical with the
trumpeters. For in the army there were those who blew signals upon
the straight, the curved, and the crooked horn ; .and while the functions
and duties of all these seem very similar, as a matter of fact they differ
in certain particulars; see Vegetius, Others say that cornicularius is a
rank in the service; so Asconius, Still others, among them Maternus,
hold that the duties of a cornicularius were secretarial, and concerned
chiefly with writing out judgements against the condemned.
There were also secret police, whose business it was to ferret out 41
and report crime, perhaps without regard to the place where com-
mitted, as held by Accursius, or crimes committed at court only, as
Alciati thought. Likewise, too, perhaps these secret police were
otherwise designated as 'roundsmen' who also are mentioned in the
laws. They are called circitores by syncope for circuitous. The tribunes,
says Vegetius, d select suitable and thoroughly trusty men to inspect
(circumiri) the watch, and to report any infraction of the rules during
the day among the soldiers, especially within the lines. It is called
'making the rounds'.
Again there were 'measurers' (mensores), whether persons to survey 42
the site for camps (called also metati),* 2 or to measure timber and 43
provisions, as was held by a gloss f which Lucas de Penna follows.
The sounder view, however, is that it is the business of the metator
to go on in advance of the army and to choose a place for a camp,
which to-day is the special function of the camp and army director, as
we say; whereas the 'measurers' (mensom\ after the camp site was
reached, marked off 3 with the foot-rule where the soldiers were to set
up the tents; and in towns they assigned and secured billets for them
a business which to-day falls to the officer commonly known as
'quartermaster-general'.
These, too, had a primicmus of their own; and they ranked one
degree below the agentes in rebus * for their frimiceriw, after two years'
service, begins the service of an agens in reins* And they mounted up
to the highest honours in due order, not by leaps and bounds, as we
see done in these days.
Among the soldiers are numbered also the aids of the city prefect 44
and the praetorian prefect; so too of the military chief, governor,
1 [For qui read quods-Ik]
2 [This is an error, due apparently to assuming a nominative metati from the ablative tnetatis, or
from the genetive. As a matter of fact, the nominative plural is mtata } 'quarters' (Codt, XII. xl.V--Tii.]
3 [For dometiebantur read dimetiebantw. TR.]
Chap. X]
and Warfare
lieutenant-governor, and count of the Orient. Each group has special
titles devoted to them in the Code. a Add also the aids of the provincial
officials; for whom see Code, XII. Ivii. 7, where mention is made also
of the aid of the food administrator an office at one time conferred by
the Emperor Alexander upon the famous jurisconsult Ulpian, who
subsequently advanced from this administration to the office of prae-
torian prefect, as is shown by Code, VIII. xxxvii. 4, and IV. kv. 4. In
the first of these citations [12'] the Emperor refers to him as 'friend', in
the other as 'parent'. (In the place of a food administrator, our military
commanders in these days appoint a commissary general.)
4 5 Cobortales, however (to touch on this matter in passing), are
forbidden all other forms of service. So Code XII. Ivii. 12 ; from which
passage, near the beginning, we may infer that their name is derived from
the word 'cohort' (cohors), though a glossator b declares that the cohor-
tales are so named because they are more closely crowded (coarctarf) than
the curiales, repeating the same on the rubric of Code, XII. Ivii, He
showed better understanding where he says c that the name is derived
from curia ('court'), or from cohort ('cohort').
According to Alciati, the cohortales were so named from being
assigned to a cohort; or because they collected tribute by cohorts, as
Joannes Pyrrhus understood it. But Alciati is better supported by
Code, XII. Ivii. 4.
That their duties had to do with clerical and secretarial matters
may be assumed from Code, XII. Ivii. 10 and 14. But there is nothing
against supposing their organization into cohorts. That their service
was exacting is implied by Code, XII. Ivii. 12, where it is stated that
their term is not complete short of service in thirty campaigns. And it
is said that their lot involves that of their sons, so that they resemble
farmers bound to the soil. Hence also it may be assumed that theirs
was a special service, with a chief, a first centurion, and other officers.*
To the service belonged also transportation agents 6 perhaps
persons who shipped food or clothing or anything else needed for the
Emperor's use. (For /kora^o) in Greek is what porto ('transport') is in
Latin, which also is gathered from Code, XL viii. 8.)
46 In the service, too, were the armourers, 1 to whom belonged the
making and oversight of arms. 6 They had primicerii and protectory,
which are titles representing office and dignity, as I have already said.
47 The laws class as soldiers also the exsecutores and collectors. 11
4 g Furthermore, the Emperor declared the very court advocates and
pleaders of cases to be in the service. 1 This will cause less surprise to one
who 1 will consult Code, XII. xii, I, where even the physicians of the
imperial court are said to be in the service, and they are ranked in
dignity with vicegerents and generals who have held actual commands
pai.liiffj
* On Code III.
xxiii. 2.
c Gloss on Code
III. xxiii. i,
word mlitare.
Ivii. 13.
Cafe, XL viii.
8.
3 and 4.
3 and 6.
* Code, II. vii.
14.
1569.64
: [For quod read yw. TR.]
26
A Treatise on Military Matters
[Parti
xlix, 3.
b C<wfc,
xlix. i.
xlix. 4,
e For these see
7;XII.xxxvii.
9 and n.
f See his tract.
Z)g Magistrati*
bus Romnis,
Ft. i, at end.
taris Inslituta,
Il.vii.
provided, however, that they have won a place among the counts of
first rant. And no wrong is done in honouring those who watch over
the health and very life of the Emperor, indeed they are rated even with
counts who have governed provinces, as you will see, if you read Code,
XII. xiii. I, in connexion with the law that next follows.
To the service belonged also accountants.* The Emperor, how- 49
ever, declared* that their administration was rapacious and dishonest;
and so he ordered that they should not be exempt from examination
under torture, if occasion should arise. The nature of their office
and business is set forth in Code, XII. xlix. 2, where they are changed
[13] in status and name to tabularii. They had charge also of the
imperial treasury in the provinces and of the fiscal revenues. 11
Add also the opinatom, who 1 were collectors of army rations. 6 50
However, Joannes Pyrrhus corrects to opimatores persons whose
business it is to see that the camp is well fed (opiums), commonly called
Victuallers'. 1 And Haloander emends the text of the cited laws
'optiones, not opinatores', influenced perhaps by Code, X. xxii. 3, where,
among the 'collectors', optio is listed as of masculine gender.
Probably the first reading, opinatores, is the best, connoting
either 'collectors' or those persons who pass upon estates that have to
be appraised, as we gather from Code, XL iii. 3 ('according to the rating
of the land', i.e. according to the assessor's estimate, as Accursius there
explains). The name is perhaps derived from the fact that they put
upon estates the estimate which they think (opinor) right.
Moreover, Alciati says that the optiones who move on in advance of
a sick soldier to fight for him are named from the verb coopto ( c to
substitute 5 ) an idea which he drew from Vegetius. 'Optiones', says
the latter, 5 'are named from the verb opto ('to choose 3 ), because in case
the officers previously mentioned 2 are incapacitated by illness, the
optiones take over all their business, as being their chosen substitutes.'
Mention is made of optiones in Code, X. i. 9; but from this passage
we hardly gather what their duties were, That they might be collectors
is shown by Code, X. xix, 7, if we follow Haloander. Clearer evidence
is found in Code, X. xxii. 3, and XIL xxxvii. II, the latter citation
seeming to show that they received the money collected from the
provincials, not directly from the contributors, but from the hands
of the governors themselves and from the provincial staff. They are
mentioned again in Code, XII. xxxviii. I, but in both these passages
the reading in the common texts is opinator, and not optio, as corrected
by Haloander, whose position is much weakened by the words of
Vegetius above quoted.
J [ii. probably for '. TR.]
3 [Namely, tribune, standard-bearer, &c. Alciati's interpretation ignores the context and strangely
perverts antecedentilus. TR.]
Chap. X] and Warfare
To continue, the opinatom referred to in Code, XII. xxzviii. i,
made collection for a person's family even when he had none, or rather
they made collection for families that had died out and disappeared,
burdening other provincials in their name. But they did not collect
from exempt persons, as Accursius explains; though in Code, XIL
xxxviii. 2, all exemption is forbidden, even of the household of the
Empress.
There is further mention of options;, but in another sense, in Code,
IV. lxv.^5 ('under the different of times of the allies') 1 ; and in the
Autbenticum, cxvi ft : 'that they send the allies to the proper 2 of tunes'. *Swntibus.
These two last passages show that the Roman soldiers were classified
in appropriate divisions, and the allies in proper optiones.
51 In the civil service there were also tellers, i.e. special receivers, as
they are called to-day, such as tribunes (otherwise, chiefs) of the
treasury.
52 _[13'] And, to bring to a close at length this catalogue of civilian
soldiery, all are said to be soldiers who labour and serve in the imperial
palace. b There will be more particular mention of many others in the b SeeCo^xil
following chapter, in the review of the grades and titles of the armed gjf '> entire
soldiery.
CHAPTER XI
ON SOLDIERS OF THE ARMED SERVICE
SYNOPSIS
1 The common soldier,
2 Tribune.
3 Centurion.
4 Ducenarii.
5 Company of soldiers.
6 'Spearmen'.
7 Maniples.
8 Light armed foot-soldiers.
9 Leaders.
10 'Ante-javelin' troops.
11 First javelins.
12 Division.
13 Third line' men.
14 Skirmishers,
15 Reserves.
AFTER reviewing so many soldiers of the civil service^ it is my
pleasure to consider some belonging to the armed service; though I am
well aware that not a few of those already considered should have been
classified in this second division, while many to be mentioned here
1 [A misinterpretation of the clause: sub diversis optiombus foederatorum nomine sunt dewrati.
Manifestly foederatorum modifies nomine, and not optiombus (masculhe),--TR.]
2 \FoTproprias of this text, the original has ^pn'w (masculine). Neither dtation gives any support
to the conclusion which Belli proceeds to draw. In both passages opfio designates an officer, and not
a division. Tit]
A Treatise on Military Matters
[Parti
* Following his
own tract. De
Magistratibus
Militaribus
Officiis.
MnCo^V.iv.
21.
[ReiMilitaris
Institute, II.
vii, at the be-
ginning.]
at the begin-
ning.]
4ft]-
might have been included in the first division, This subject I shall
take up from rather early times.
When the Roman commonwealth was in its prime and mistress
of the world, provinces were assigned b7 lot to consuls, proconsuls,
praetors, and propraetors, and these officers commanded armies.
Scarcely will you find any others sent into provinces with the military
imperium.
And when the government merged into a monarchy, Augustus
introduced few changes; and the same is true of the others who
occupied the throne after him, even up to Hadrian's time. The latter
introduced many innovations; and, after him, Diocletian and Maximian 1
added far more; for where abuses are rife laws and punishments abound.
[14] After Constantinople was made the new Rome, and the seat
of government was transferred to foreign soil, and, in the period before
the Gothic and other barbarian invasions, the world as a whole was
divided into districts and provinces, with gradations among the civil
and military directors, crown officers, and their staffs. This subject
you will find very fully treated in a certain anonymous work which
Alciati published, He himself calls it A Report to Tbeodosius*
The titles and grades of the armed service are not mentioned
with equal detail in the laws. But there is reference to the common
soldier, which is the lowest grade of all; b and Digest, III. ii. 2, speaks of i
the tribune, the centurion, this same common soldier, and other grades.
Vegetius declared that the word 'tribune' is derived from 'tribe'
(tribus)f and from administering justice (ius triluere)\ also that one of 2
their number was a 'senior' officially appointed by the Emperor, while
the others won promotion by their own exertions.
The centurions were officers who commanded centuries, and for 3
that reason by others they have been called centenarii ('commanders of
hundreds'). There is mention in many laws ofducenarii, who, I fancy,
either commanded two hundred men, or themselves formed a body of 4
two hundred in their department or class. Furthermore, Vegetius has
this to say of the ducenarius : 'The ranking centurion of the third maniple 2
used to command two centuries, i.e. two hundred men. At the present
time,' he adds, 'the name is ducenarius^
Such a point concerns little a legal treatise; and yet I cannot bring
my mind to pass without mention the manner in which the Romans
at the time when state 3 and army were at their best classified their
soldiers, according to the account given by Livy. e
Roman soldiers, he says, were arranged in numerous companies, 4 5
1 [For Maximilianus read Maximianus. ED.]
* [This is the meaning of prior hastatus in Caesar's time. Vegetius perhaps has something different
in mind, TR.]
3 [For respMcae read respublica.Tb.]
4 [This difficult passage from Livy is much confused here. See a good text with notes. TR.]
Chap. XI]
and Warjare
29
each company having sixty men, two centurions, and one colour-
bearer.
6 The first line of a legion in battle array consisted of 'spear-men',
7 fifteen maniples, stationed with short spaces between, (A maniple
included twenty light-armed men, the remainder heavy-armed. Those
8 were called 'light-armed' who carried only spear and javelins. 1 ) This
first line was made up of the very young men.
Behind these were ranged a like number of maniples of men of
9 sturdier age, who^were called 'leaders'. 2 All thus far mentioned were
provided with shields and resplendent arms, making together thirty
10 maniples; they were called the 'ante-javelin' troops. 3
In a third line under the standards, another fifteen companies
were stationed, each of which was made up of three divisions, the
11 first 4 of which in each case they called 'first javelins'. The company 5
12 made up of the three divisions numbered one hundred and eighty-
three men.
13 The first division was called 'third-line men' a veteran soldiery
14 of tried valour; the second they called 'skirmishers', and the third
15 'reserves' (accensi] soldiers of little reliability, who were relegated to
the rear of the line.
Joannes Pyrrhus makes mention of accensi in a treatise of his a
which came to my hand after the completion of this work of mine,
whatever be its merit. But he offers no explanation, and simply refers
to his Commentary on Three Books of the Code? [14'] which it has not
been my good fortune to see. (Following the army as I do, I have had
no leisure or opportunity to get together a fuller bibliography, my
destiny calling me to follow now these rulers and commanders, and
now others, and, as the poet has it, to live under another's auspices
rather than under my own. ) Alciati, however, says they are servants
of a higher magistrate, as it were 'added to the roll'. But neither of
these writers cites the above passage from Livy.
The 'spearmen' (hastatf) were first of all to enter battle.
Again, at another point Livy says thztprimipilus is the designation
of the first centurion/ Joannes Pyrrhus held 6 that the primifilus was
commander of a legion, either of the tenth legion, which was most
distinguished, or of the first, as he is more inclined to think. But that
this was not the case is clear from Livy, and also from Caesar.
The latter says:' 'Titus Balventius, who had commanded the first
maniple of the first cohort the year before^-a brave man, of large
influence had both thighs pierced by a dart; Quintus Lucanius, an
gessa, i.e., gaesa or gwa. TR,] 4
'A name given them at an earlier time, when the troops were drawn up in a different order. Tx.J
[So named from the equipment of the troops behind them TR.]
The reading in Livy is very uncertain. TR.]
'Modem texts at this point omit vexittum ; and ordo is carried on as subject T&.]
* DC Magi*
stratibus
Romanist Pt.
I, no. 5.
* [On Code
xn.iv].
[Virgil,
AeneidlV.
*DeMagislra-
tibus Romanis,
Pt. Ill, no. 7,
3
A Treatise on Military Matters
[Part I
* Civil War, I
[xiii. 4].
[liii. 4ff.j,
c Ibid. [xci. i].
id. [xci. 2].
e Cwfl Tftzr, I
[Ixxxv. 9],
xiv.4;XII.
lxii.3;and
comments on
V. xvi. 15.
officer of the same rank was killed, 5 Again, he relates : a 'Lucius 1 Pupius,
a centurion of the first maniple of the first cohort was brought in
a man who previously had held the same rank in the army of Gnaeus
Pompey.' Furthermore he adds: b When the shield of Scaeva, 2 a cen-
turion, was brought to Caesar, two hundred and thirty punctures 3
were found in it, and he promoted the man from the eighth cohort
to the command of the first maniple of the first cohort.' And once
again : c There was in Caesar's army a re-enlisted man, named Crastinus,
who had commanded the first maniple of the first cohort of the tenth
legion the year before.'
Now why need he have specified 'in the tenth legion', if that alone
hadAfrimipilus ? Even Pyrrhus seems to have felt this, in view of what
he there says; for he also cites this passage from Caesar regarding
Crastinus, the re-enlisted man.
To touch on the matter parenthetically, I hold that re-enlisted
men (euocati) were soldiers of great courage and large experience, who,
after release from service, were recalled to the colours by their generals,
under stress of urgent need. For example, we read of this same Crasti-
nus: 4 'To his men he shouted, "You who were once my comrades-in-
arms, follow me." '
Caesar further says 6 'because men who had been tested in previous
wars were called out (evocarf) to command armies' ; and in the same
book he states : f 'Of the senatorial order there were present Lucius
Domitius and Publius Lentulus, Vibullius* Rufus, Sextus Quintilius,
and Lucius Rnbrius; also the son of Domitius, 5 and several other young
men, and a large number of Roman knights and municipal senators,
whom Domitius had summoned (evocare) from the towns.'
Again, in the same book 8 it is stated that Caesar had sent legions
ahead into Spain, with auxiliary foot soldiers to the number of six
thousand 6 and cavalry to the number of three thousand, with an equal
number from Gaul, whom he himself had enlisted, summoning (evocare)
byname 7 all the most distinguished men from every state. Pyrrhus, how-
ever, in the above reference does not understand the matter in this way.
Under the Emperors, not a little is added to the responsibilities
of the first centurion, as is shown by the laws, which demanded that even
a wife's dower be liable to confiscation for the debts of a primipilus*
[15] The sons also were liable for his debts to the extent that they might
1 K or k rea ? I ("^)'- TR -] a [For Smss read tewa-ED.]
3 [One hundred and twenty is the number given by Caesar. TR.]
4 [The MS. reading Caedlius is usually retained (as against VMlius). TR.]
5 [This is Gnaeus Domitius Ahenobarbus, who was one of the party of Brutus and Cassius, and
was later among those accused of the murder of Caesar. The second and fourth of the names listed
in this quotation are given in Rene Du Pontet's text (Oxford, 1901), and in A. G, Peskett's Loeb
Library text (London and New York, 1914), as P. Lentulus Spinther, and Sex, Quintilius Varus
quaestor. ED.]
6 [This numeral is doubtrU-TR.] 7
Chap. XI]
and Warfare
3 1
Cafe, XII,
not decline to accept inheritance from the father; or at any rate, even in
case they declined, 1 they were compelled to pay the father's debts. a
From this we are justified in supposing that, by virtue of the 4 '
nature of his office, a primipilus handled public funds perhaps the
money which was appropriated for the pay of the soldiers under him.
This agrees rather closely with the comments which Alciati b made upon b opcode xn
the pnmipilus, drawing his material from Vegetius, in whose writings lxii -
you will find extensive information regarding the dignity and the
duties of this officer. J
CHAPTER XII
ON THE PRAETORIAN PREFECT
SYNOPSIS
1 Praetorian prefect of the Orient
2 Praetorian prefect of Illyricum.
3 Praetorian prefect of Italy.
4 Praetorian prefect of the divisions of Gaul.
5 Praetorian prefect of Africa.
6 Praetorian prefect; comparable to what
present-day official ?
7 Privileges of the praetorian prefect.
I CHIEF of all magistrates were the praetorian prefects, four in
3 number of the Orient, of Illyricum, of Italy, and of the divisions of
5 Gaul. Finally Justinian added a fifth, the Prefect of Africa; and to
him a special title in the Code 6 - is devoted.
(Of the prefect of the praetorian guard Tacitus writes as follows:
'He (Sejanus) extended the previously moderate power of this office
by bringing the scattered cohorts together into a single camp, so that
they could receive orders simultaneously, and through their numbers,
strength, and the sight of each other, they might themselves gain self-
confidence and become 2 a source of fear to others, 3 See that text 6 for
further details.)
in the same capacity as a magistir equitwn served a Dictator. Others
(e.g. Bude) compare them with the officer to-day called the grand
chancellor. Still others liken them to the grand constable an office
found only in Spain and France. My own view is that they can
hardly be compared to any of the officials of our times; for while they
resemble them in some particulars, in many points they are very unlike.
Mention also is made in the Authenticum* of four prefects (namely,
of the Orient, of Illyricum, of Spain, and of Africa), whose privilege it
is to travel in coaches, to be announced by the voice of criers, [15'] and
to occupy the judicial bench. (For, to digress, the right which the
1 [For absenti read abstenti. TR.]
z [The reading crederetw has been further emended to oreretw* IfeJ
d I. xxvii.
e Annals, IV
[ii].
* LXII, cap. i,
col. 5
A Treatise on Military Matters
[Part I
sole law.
b Code, I.
2.
more affluent even of the populace and artisans to-day assume through-
out Italy, and especially at Milan, to ride at will through the city in
carriages, in those saner times was allowed only to very prominent and
important personages.)
It was among the other prerogatives of a praetorian prefect that 7
there was no appeal from his verdict, the Emperor assuming that the
prefect will judge in the same way he himself would have done. It
was a second prerogative that minors, if wronged by a decision of
his, could be righted by no other than the prefect himself, unless
perchance by the Emperor. a This rests on the obvious principle that a
lower official may not pass judgement upon the action of a higher 1
magistrate.
He may also enact laws, if they are not party legislation, but
general in scope, and not in conflict with earlier regulations. 15 He has
power also to unseat a judge for cause. And he passes upon the injustice
and unfairness of such a judge, even though the sufferer is a soldier;
and the military chief will not take up the subject. d
CHAPTER XIII
ON THE CITY PREFECT
SYNOPSIS
e See Dig. I. xi
and xii; Code,
I. xxvii and
xxviii.
* [Annals, VI.
xi.iff.]
1 City prefect; when the office was first
inaugurated.
2 Powers of the city prefect,
3 Prefect of the treasury,
4 Prefect of the watch.
5 Prefect of artisans.
6 Prefect of the camp.
7 Praefectus laborum.
8 Prefect of public works.
9 'Prefect' a general designation,
THE city prefect follows the pretorian prefect both in rank, and
also in the order of titles in Digest and Code* Of this officer Tacitus
writes as follows: 1 'In early times when the kings left home, and later
when the magistrates left the city, they chose an officer to administer
justice and to meet sudden calls, not wishing the city to be without a
supreme executive. And tradition has it that Denter 2 Romulius was
thus appointed by Romulus; so later Numa Marcius by Tullus
Hostilius, and Spurius Lucretius by Tarquinius Superbus. Thereafter,
the consuls made the appointment; and a survival is still seen as often
as, on the occasion of the Latin festival, an officer is appointed 3 to act
for the consuls. 4 Moreover, during the civil wars, Augustus put Cilnius 5
1 [For magioris read mioris. TR.] 2 [For Dents read Dentrm.'E'D.]
3 [For prafidscitw read praeficitur.TiL.]
4 [This being an occasion that called for the absence of both consuls from Rome at one time, TR 1
s [For Cm/am read Cilnim. ED.]
Chap, XIII]
and Warfare
33
Maecenas, 1 a man [16] of equestrian rank, in charge of everything
at Rome and in Italy. Later, when his power was now established,
because of the size of the population and the tardy redress of the
courts he chose men from among the ex-consuls to discipline the slaves
and those elements in the civil body which are bold and unruly unless
in fear of drastic action.'
In the supervision of supplies, the city prefect was associated with
the food administrator, but with the understanding that the latter
recognized the former as ranking higher.*
2 The city prefect had jurisdiction in the case of all crimes com-
mitted inside the hundredth milestone 2 (as to-day in the district of
Milan the 'chief justice', as he is called, shares jurisdiction with any
praetor and local judge of any state, the only question being who was
first to take up the case). 13
He heard also complaints of freedmen against their masters, and,
in turn, of masters against freedmen. So too complaints regarding the
cruelty or immorality of masters in their treatment of slaves, and
regarding graver derelictions of guardians and the dishonesty of money-
brokers.
He also fixed the price of meat. And it was his business to maintain
order, particularly when games and public spectacles were in progress.
Consequently he would station detachments of soldiers at strategic
points. And for sufficient reason he could debar from trade or
profession.
All these functions were his within the limits prescribed to him,
but he took no action beyond them; however, he could delegate these
functions to men within 3 the bounds. But in the city 4 he ranked above
all the magistrates, and he had jurisdiction over all corporate bodies
and associations,*
3 Finally, the Emperors established the office of prefect of the
4 treasury, mentioned in Digest, XLIX. xiv. 42, at the beginning; so
prefects of the watch, referred to in the rubric and sole law of Code,
I. xliii. And Justinian expresses surprise 6 that these latter were called
'night prefects' 5 by the Greeks.
s There were also prefects of artisans, prefects of the camp, fraefati
7 laborum, and prefects of public works, and^ others of similar character;
|J for this is a class name, like praepositus and other titles of that kind.
[Mecaenatem, i.e. MaecenaUm.-'EX).] .
[The reference to the Digest suggests that extra ('outside of) should be read for vaira ( within 1 )-
4 [For Infra lead Into. TE.]
[For tafiau read praefectos.TtL.] 6 [For at a tque read fl/0w.~ED.]
b JD*. I. 301. I,
at the begin-
ning.
a See Code, I.
* Nwck, xiii,
praef.
1569.64
34 -^ Treatise on Military Matters p> a rt I
[16']
CHAPTER XIV
ON THE OFFICE OF MASTER OF TROOPS
SYNOPSIS
1 The court master of troops.
2 The praetorian prefect, city prefect, and
the master pf horse and foot, are equal
in rank.
3 Which takes precedence over other peers ?
the one that earliest entered upon office,
or the one who first received his com-
mission?
4 The provost of the imperial household
equals in rank the praetorian prefect.
NEXT after the prefects come the court masters of troops, of whom i
there were many, both of horse and of foot. Some were stationed in
Illyricum and Thrace, others throughout the Orient, some also in the
West. On these and other Roman officials there are remarks by the
writer mentioned above, in his Report to Tbeodosius, found also in
a Mowing the works of Alciati. a
Ei, The rank of all prefects (both praetorian and of the city) and of the 2
Cmiausqutet master of foot and horse was practically on a par and equal; but with
<&. w thls resem tion, that when it was their time to return to private life,
precedence was given to the man who was found to have first secured 3
ciTxn fc P* 011 and received his commission, 15 And precedence in the matter
' of sitting, speaking, and voting is accorded the man who has longest
enjoyed the lustre of office held; ,and this is to be observed in the case
of all persons who are peers in position and rank.
t Moreover (to touch this point in passing), the provost of the 4
imperial household, whom to-day they call the grand chamberlain, is
equal in rank to the above-mentioned masters, and even to the prefects, ,
with the reservation that, on laying down office, precedence is given i
that man among them who was first appointed, and second place
tails to one who was later in securing recognition.*
Chap. XV] ' and Warfare 35
CHAPTER XV
ON THE DUTIES OF THE CHIEF OF THE SECRETARIAT AND OTHER
OFFICERS
SYNOPSIS
1 Chief of the secretariat.
2 Chief of memoranda.
3 Chiefs of correspondence.
4 Chief of Greek correspondence,
5 Chief of documents,
6 The Master of Offices.
7 Duties of the court marshals.
1 FOLLOWING the above-mentioned officials, the chiefs of the
secretariat enjoyed great authority. To them the rubric and sole law
of Code, XII. ix, are devoted,
2 Under their direction were: The chief of memoranda, [17] who
3 phrased and issued all decisions, and answered petitions; the chief of
correspondence, who had to do with legations, interviews, and petitions
4 of states; a second chief, of Greek correspondence, who either indited
Greek communications or translated such into Latin; and the chief of
5 documents, who had oversight of law cases and the pleas thereto
pertaining. (Mention is made of these chiefs in Code, X. xlviii. II, ,
where their privileges are enumerated; so in XIL xix. 3. The number
serving in any bureau is indicated in Code, XIL xix. 14.)
6 High also was the power and standing of the Master of Offices 1 ,
7 whom the Emperor refers to as 'his excellency'. 1 Among other things it * CM* I. mi.
was his business to advise the Emperor as to the enrolment of soldiers. *
His, too, was the oversight of camps and fortifications.* Under his super- * See Code, I.
vision also were the entire first and second classes of shield-bearers. So ml ' 4 '
too the senior foreign troops, all archers, heavy infantry, cuirassiers,
. t . . r r _L*L j e See the above
, pnior detachments, junior foreign troops, agentes in rebus, and
assistants in that same department. Again, measurers, torch-bearers,
the bureau of memoranda, the bureau of correspondence, the bureau
of petitions, the bureau of enactments, the reception staff all these QUfaw a
r i i n/r r/>rc G Mlhtaribus
were under the Master of Offices. offtik, i.e. in
the above
1 [For snuA w&slri read era* ma|irfer.-Ti.] dted 'Report
toTkeodosats 1 ,
A Treatise on Military Matters
[Part I
CHAPTER XVI
ON VARIOUS COUNTS
SYNOPSIS
l 'Comitatus' defined.
2. Standing of the counts.
3 Count of the fiscus,
4 Counts of trade.
5 Counts of mines.
6 Counts and finance officers.
7 Prefects of the treasury.
8 Warders of linen vestments.
9 Warders of personal wearing apparel.
10 Directors of the imperial textile works.
11 Directors of woollen mills.
12 Directors of dye-works, 1
13 Directors of the mints,
14 Chief of transportation.
[17'] 15 Count of vestments.
1 6 Count of the gold.
17 Count of treasury business.
1 8 Privy count of the imperial household.
19 Private transportation service.
20 Overseers of herds.
21 Overseers of stables.
22 Commissioners of pastures.
23 Private accountants.
24 Chief secretary of indulgences.
25 Chief secretary of rules.
26 Chief secretary of releases.
27 Chief secretary of the privy purse.
28 Count of the fiscus.
29 Count of the palace.
30 Count of the imperial stable.
31 Counts of provinces.
32 Counts of the privy council.
3 3 Counts of country estates are unworthy
of the name.
34 Counts of the palace guards.
35 Counts of residences.
36 Counts of the departments.
37 Counts of highest rank.
38 Physicians-in-chief.
39 Is a military count higher than a vice-
gerent ?
40 Should a person who has held the same
office several times 2 take precedence
over one who has held it but once ?
41 Should the man have precedence who
is prior in honorary office, or one who
follows in this particular, but who is
prior in actual administration ?
42 He who has paid the fee for honorary
office does not pay again for actual
tenure.
43 Office held should have an aftermath of
distinction.
44 A junior who is far higher in rank takes
precedence over an older man.
45 Whether precedence should be given to
a person who retires by favour or to
one who retires in due course.
46 Counts of the imperial horse and foot
guards.
THE place where the Emperor passes his life is called comitatus, as i
Alciati in several passages points out. Hence those who live and stay
continuously in the palace are called comitatinses; [18] hence also the
term 'counts 3 . 3
The power and dignity of this position were great. And highest ^
of all were the counts of the fiscus, who were stationed in almost 3
every province. For everywhere the counts of trade were under their 4
direction; so also the count of mines, and the count and finance officer |
of Egypt.
1 [For baffrorum read bafiorum (i.e. baphiorum).^^] 2 [For plnries read pluries.En.]
3 [Literally, 'companions', 'attendants'. TR.]
Chap. XVI]
and Warfare
37
7 Under this official too were the prefects of the treasury, the
I warders of linen vestments, the warders of personal wearing apparel,
\l the directors of the imperial textile works, of the woollen mills, of
H dye-works, 1 and of the mint, and the chief 2 of transportation.
H Under him also were another fiscal count for Illyricum, the count
16 of vestments, the count of gold, the count of Italian finance, the count
17 of treasury business in Africa, and the finance officers posted every-
where in the provinces.
18 The Emperor had also a count in charge of the private business of
19 the palace.* And under his direction was the private transportation
JJ service, and the overseers 3 of herds, of stables, and the commissioners
JJ of pastures, and also the private accountants.
24 He had also on duty a chief at large, a chief secretary of indulgences,
g a chief secretary of rules, a chief secretary of releases, a chief secretary
27 of the department of the privy purse, and all the other secretaries of
these bureaux. He had, too, a second officer at large, who handled the
documents of the entire office, as you may see more at length by
reference to the above mentioned 'Report to Tbeodosius*.
28 In the Code there are special titles and many laws dealing with the
29 office of the count of the fiscus, of the count of the palace, 4 of the count
of personal assets, and of the count of the Orient. Therein, however,
various trifling regulations are set down, which bear little upon the
study of law or upon military science,
3 Mention is made also of the count of the imperial stable, and of the
II counts of Egypt and of the Pontic district;* so of the counts of the privy
council, c who are called Very highly distinguished' in Code 9 XII. x. I , and
rated with proconsuls. They attended the Emperor's privy council and
his tribunal. Such to-day is the rank of 'counsellors', as they are called.
(Speaking of the above, Lucas de Penna says* that 'count 3 is a title
of dignity, and that it always presupposes distinguished merit on the
part of the bearer; if this is lacking, the holder of the title must
not only be excluded from attendance upon the Emperor, but he
may not even reside near the palace. 6 In these days, however, he
33 declares that, on account of their great numbers, the multitude of
counts makes for cheapness, especially those who owe their titles to
country estates and castles.)
These counts of the privy council are, I say, called Very highly
distinguished 3 by the Emperor. 1 There were also counts of depart-
ments, counts of the palace, and military counts who ruled provinces.
And to these are devoted individual titles in the Code. 8
35 There were also counts of the palace guards,* [18'] counts of
v residences, 1 counts of departments; 1 so also counts of the first rank, to
1 [For laffiamm read bafiorum (i.e. bapkiorwn). TR.]
* [For prvpositus read praepositus.T*.] 3 [For Propositi read Praepositi ED.]
4 [But in place of paktii the accepted reading in the rubric in question is now patrimontt. TR J
xxxiii, rubric,
and entire title
generally.
sole law.
Ibid., x.
* On Code,
rubric, XII. x.
* Cafe, XII. x,
i and 2.
A Treatise on Military Matters
[Parti
i and 2.
Z., xiii,
13,
On Code,
rubric, XII.
xiv.
* Code, I.
xxxviii. i.
iV. 2, gloSS 2.
wliom soldiers too were assigned, to be conducted to remote provinces,
or there to be commanded. These take precedence over men who have
the proconsular insignia, and the7 are rated with governors who have
administered provinces, excepting Egypt and the Pontic district.* We 38
read also b that physicians-in-chief, who have served among counts of
the highest rank, are rated with military commanders and vicegerents.
These all are Very highly distinguished', excepting those whom I
have mentioned above as 'illustrious', and of whom the Emperor speaks
in Code, XII. xxxvii. 8; and that all were not on a par in dignity was
noted by Accursius. 6 Of the physicians-in-chief I have spoken in the
preceding section; and the Emperor grants precedence to military 39
counts over the vicegerents of the praetorian prefect,* but only in
military matters ; for in civil relations the vicegerent is given preference, ,
as is stated in Code, I. xxxviii. i, a law which sheds some light on the
question whether a knight or a doctor takes precedence.
And now that the discussion has turned to rank and precedence, 40
I ask: Which has precedence, a person who has held an office earlier,
but only for a single term, or one who has held it several times after
both have retired to private life ? And Code, XII. iii. I, rules that office
frequently held shows proved worth, but does not augment it. We
conclude, therefore, that he who is first in time is first also in privilege.
I raise the further question whether a person who first secures an 41
honorary office, but is later in its actual administration, takes precedence
over one who was later in securing appointment but earlier in adminis-
tration. And Code, XII. iii. 4, rules that the one earlier in honorary
office takes precedence ('in regard to all the honours and privileges of
consuls, he should know that precedence is to be claimed on the basis
of earlier promotion').
And the above law should be noted also for another point, namely 42
that in case a person, who has secured an honorary office and paid the
usual fee therefor, at another time secures the same office with power
of administration, he will not pay the same amount a second time.
From the laws cited above we learn, further, that those who at
some time have been distinguished by high office, are accorded honour
also after their retirement, as an aftermath of office-holding. Further 43
evidence is found in Code, XII. ix. I, with additional discussion in a
gloss. 6 To this same effect might be cited Code, XII. v. 5, as Baldus
interprets it, and as a gloss there implies. (But perhaps the meaning
of this law is different, namely that the provosts of the household
even of the Empress after the completion of their service are en-
titled to the use of the coach and belt, not as an aftermath of office-
holding, but in case they have risen to senatorial [19] dignity: unless
one were to assume that by virtue of serving the required time they
are advanced to senatorial .standing, which is implied in Code,
Chap. XVI]
and Warfare
39
xvi. 3.) The rules for precedence in the case of those who have held
honorary office, and for those who have seen actual and real service,
and for those who have been exempted earlier or later, are found stated
in Code, XII. viii. 2.
In regard to this subject of precedence I think that we should note
another point, namely, that the principle that priority in time means
44 precedence in rank is subject to the proviso : unless a younger man far
out-classes an older, and the fact is attested by fifteen witnesses of the
same rank and calling. For both qualifications see Code, XII. xix. 7.
(This seems in conflict with what I have said above under number 41 ;
and we might reconcile by assuming that one case has to do with an
honorary office, which carries with it an aftermath, the other with an
honorary exemption, which carries no aftermath of office-holding/)
Moreover, those who have served for a time, and then have been
released through honorary exemption, are not given precedence over
those who have served through a full term, even though the latter
were later in taking office.
45 And those who have served their term and earned actual retirement
take precedence over those who at the time are in the administration of
the same office ; b for what one is attempting to accomplish, the other has
1 already carried through.
46 There were also at court two counts of the imperial horse and foot,
who had charge of these palace guards.
[19']
CHAPTER XVII
ON THE OFFICE OF VICEGERENT
SYNOPSIS
1 'Vicegerent* a general term.
2 A vicegerent is a sort of shadow of
another.
3 A vicegerent appointed by the Emperor
is different from one appointed by a
magistrate;
4 And they do not enjoy equal rights.
5 A vicegerent may be recalled, even
though appointed to a permanency.
6 Permanent vicegerents of provinces are
like the praetorian prefect.
7 The powers of a permanent vicegerent
depend upon the commission issued to
him.
8 Imperial vicegerents; who they are.
9 Whether the Emperor may subordinate
one imperial vicegerent to another;
10 And whether he may recall him.
11 No one may be vicegerent to a person
against the will of the latter.
12 The Emperor may appoint a censor and
supervisor for a vicegerent;
13 Particularly so, when the vicegerent
heavily oppresses the subjects.
14 In the territory of a duke, marquis, or
count, the Emperor is duke, count, or
marquis.
E THE power and authority of vicegerents were very similar to those
of counts. The term 'vicegerent, however, is of wide application.
xxi. 4, 2,
supported by
Co^XILvii.
2.
xxviii. 4.
A Treatise on Military Matters
[Part I
a Dig, XXL u
*7, 7-
^ Code, 1.1
Dig, I. xxi. 3.
d Constitu-
tions of
Clementj I, vii,
oppo. 6.
"Qu-3.
*OnConstitu-
Ckment, I,
vii, qu. 13.
*ConsiIIa,IL
'
omnibus supra
narratis)'
1 Constitu-
dement, I, vii,
qu. 16.
and II. i. 5 and
there, words
dieno ben*
fido.
For even a slave may have a Vicegerent 3 ; a and, further, this is a general
name for all magistrates.*
But in Code, I. xxxviii, a man holding the place of a praetorian
prefect is perhaps called 'vicegerent' by antonomasia. This is indicated
by the first law of that title, though gloss I there understands otherwise,
stating that the reference is to the vicegerent of a military count
an interpretation quite inconsistent with the law cited, which directs
that precedence be given to one of two men in certain situations, and
to the other elsewhere; this should not be said of a count and his vice-
gerent, inasmuch as a person who represents another is in a way his 2
shadow, and, therefore, his inferior.
Perhaps, too, the vicegerent to a praetorian prefect was appointed
by the Emperor himself; for, in Digest, I. xxi. 2, such a one transmits
reports in his own name to the Emperor, whereas otherwise it would
be the proper procedure to report to the prefect himself, or to the
Emperor in the prefect's name.
In fact, that the Emperor himself (as well as the magistrate in 3
office) appointed vicegerents is shown by Code, I. 1. 2 ('who by the
Emperor's order or that of your august court'), Hence the Cardinal
stated d that though a vicegerent normally does not enjoy rights equal 4
to those of the person he represents, this rule applies only when he is
appointed by that person, and not if the appointment is made by
higher authority. And he there adds 6 that there are four classes of
vicegerents,
That a vicegerent may be recalled was stated by Baldus; f and the 5
Cardinal held g that this is true even of a vicegerent appointed to a
permanency.
Paolo di Castro* finds a likeness between the praetorian prefect and 6
the permanent vicegerents appointed to the provinces by the Pope.
Consequently, according to him, they may not enact legislation amend-
ing the common law. The Cardinal also adds 1 that their powers depend 7
upon the commission issued to them.
There is too, I think, this difference between a vicegerent
appointed by the Emperor and one appointed by a magistrate, namely,
that the latter may not delegate his powers to another, whereas the
former may do so. 1
Again, the prefect of a legion was its special judge; and in the
absence of the commander he exercised supreme authority, as vicegerent
of the latter. (For this officer and for the commander himself see
Vegetius. k The canonists have much to say of the commander; [20] but
their remarks look in another direction, and have little bearing on our
subject.)
And whereas prefects, counts, and other high officials everywhere
had assumed the right to substitute vicegerents for themselves, Justinian
Chap, XVII]
and Warfare
forbade the practice, excepting in the provinces of Osdroena 1 and
Mesopotamia, denying the privilege to all other officials.* (On the
manifold variety 2 of vicegerents see the broad indulgences of Felinus. b )
8 Even in these days permanent vicegerents are appointed by the
9 Emperor in many provinces, About them Baldus discourses at length;
and he also raises the question whether the Emperor may subordinate
10 a permanent vicegerent to another vicegerent of his, or even recall him.
On both points he answers in the affirmative, inasmuch as a
n vicegerent is a minister and nothing more, and no one has a vicegerent
against his will. (For it would be contrary to nature that a person
should render duty and service to one who did not desire it; and 'since
the audience chamber is the same, no one shall sit in my audience
chamber against my will'.) For, says he, just as the Pope may depose
a cardinal, so may the Emperor depose a baron of his; much more,
therefore, may he subordinate one to another.
12 He also, says Baldus, may appoint a censor or supervisor for a
13 baron or permanent vicegerent of his; for he should not allow his
vicegerent to ruin 3 the district committed to him, let us say by subject-
ing it to new and insupportable exactions. Otherwise, he may recall
him. And he might even issue orders that the vicegerent must not
impose burdens or declare war without the approval of the supervisor.
14 Baldus subjoins, further, that the Emperor is duke, marquis, and count,
which is to say, that in the lands of a duke or marquis he has the same
powers as a duke or a marquis. Thus Baldus.
* Novels,
cxxxiv. i and
2.
I. in. 27, col. a.
*Consilvi 3 l.
328, begin-
ning: Quae-
ritw si rex
Ronmnorum.
CHAPTER XVIII
ON DUKES
SYNOPSIS
1 Dukes are 'very highly distinguished 7 .
2 Dukes are numerous.
3 'Duke' originally a designation of office,
now of honour.
THE power and dignity of dukes was not unlike that of counts or
'*
vicegerents; for dukes, too, were Very highly distinguished'.*
1 Very many dukes are mentioned in Novels* and in Code, I. xxvii.
2 2. And, in addition to those named in that law, you will find several
dukes [20'] referred to in the oft-cited treatise [A Report to Theodosius]
in the works of Alciati/ Moreover, that some dukes were 'illustrious*
is shown by Code, VII, brii. 38.
1 [Now generally written Osrhoene. ED.]
* [For species read specie.!*.]
3 [For discipare another reading is dissipare. Better still would be dtscerpere.Tn.]
1569.64 6
Cafe, XII. xL
* CXXX1V. 1.
* Following
tract. De
etc.
[A Report to
TheodosiuSj
followingtract.
De Magistrate-
bus, etc,]
b Novels, xxiii.
4-
II. lv. 4.ioth
col.
A Treatise on Military Matters
[Part I
Under the name of duke and provincial governor the Emperors
often sent men to rule provinces, and these served too as army heads.
So Code, I. xl; and, as I have said, there is mention of many dukes of
various provinces in the above-mentioned treatise in the works of
AlciatL*
However, dukes and the majority of counts were merely Very
highly distinguished', and not 'illustrious'.* Understand this, however,
in the light of what has been said above.
In those earlier times without doubt these names were designations 3
of office; to-day they have become titles of honour- see Feuds* where
division of fiefs is forbidden, and other regulations are laid down which
it would be too tedious and too remote from our subject to rehearse
here.
4 z% I. a. 2,
16.
CHAPTER XIX
ON THE OFFICE AND POWERS OF CONSUL AND PROCONSUL
SYNOPSIS
1 Consuls; when first appointed,
2 The consular arm7; its size,
3 What the powers of a proconsul were.
4 Outside his province a proconsul has no
jurisdiction, excepting in matters in-
volving no dispute.
5 A proconsul is liable for the acts of a
wife taken with him into his province.
6 A proconsul may not delegate cases
strictly executive.
7 However, he may delegate one matter.
8 A proconsul will accept gifts in great
moderation.
9 In his province a proconsul outranks
every one.
10 A proconsul should see to it that no one
in his province becomes a menace to
others because of excessive power.
11 A proconsul does not leave his province
before the arrival of a successor.
12 A proconsul will remain fifty days in
his province to render an accounting.
IT is said* that the consular office and power arose on the expulsion i
of their kings by the Romans; and this is attested by all the historical
records, especially those of Livy.
The powers of this official were as great in war as in peace, and at
home as abroad. [21] Cicero everywhere testifies to the things brought
to pass by himself within the city 1 during the time of his consulship,
always insisting that Rome was born anew in that year and being
called for this reason 'Father of his Country 3 . In nearly every other
case consuls gained fame abroad and in war, rather than at home and
in peace.
It is certain that, for service against the enemy, a single consul was 2
^ * [At the time of Catiline's conspiracy it was arranged that Cicero should remain in charge at Rome,
while the other consul ( Antonius) took the field with an army. TR.]
Chap. XIX]
and Warfare
43
fully equipped with two legions and as many auxiliary troops, or a
little less, making in all twenty thousand foot and four thousand horse.
But if the force of the enemy was so great that the state needed both
consuls in the field, these figures were doubled.*
3 As for the proconsuls, at the time when the state was in its prime, 1
and before so many offices were devised and established by the
Emperors, they, next after the consuls, enjoyed great distinction, having
committed to them armies, commands, and provinces. And in no
respect did they differ from consuls, excepting that either they had
already held that office and position and their powers were prolonged,
or at any rate they were sent out with consular authority. Moreover,
even under the Emperors their standing and power was not to be
despised. (On this office you will find much information in many
laws of Digest, I. xvi, and in Code, I. xxxv. i. It carried proconsular
insignia, which you will find graphically described in the Report to
Theodosius already cited several times above. Compare, too, Digest, I.
xvi. I.)
4 A proconsul does not exercise his powers until he has entered his
province; 1 ' but outside its limits he may act in cases that involve no
dispute.
5 Furthermore, he will do well not to take his wife into his province;
for if he does so, he is liable for her acts. d And he will not delegate
jurisdiction to a lieutenant before his arrival in the province (for he
cannot delegate this to another sooner than he is able to acquire it
himself 6 ) unless he suffers unavoidable delay on his journey.'
6 At any rate he will not delegate really executive functions; 8
7 though he may delegate one matter, i.e. the examination of a prisoner. 11
8 Above all else, a proconsul must be circumspect in regard to the
receipt of presents. For to accept from no one would be extremely
discourteous; 2 to accept indiscriminately would be very discreditable;
and to accept everything would be avaricious beyond measure. 1
It is a part of his duties also to supervise public works ; and to see to it
that they are cared for and repaired or completed; 3 and to put in charge
superintendents of works, supplying soldiers as labourers when necessaryJ
9 Further, in his own province he outranks every other officer. 1
Hence he will handle all cases pertaining to his province. But he will
do well to refer to the Emperor's procurator cases involving financial
claims ofthe.fiscus. 1
[21'] He should also show himself circumspect in giving ear to
pleaders at law. He should not be strict beyond measure; nor should
he allow them to manufacture cases, to buy them up, or to assume a
sham role. m
a SeeVegetius
Rei Militaris
Institute, II.
IILi.
*Dig. I. xvi. i.
c See Ibid., 2.
* Ibid., 6 and
ii,
11 Law 6 just
cited, at the
J^jgf. Lxvi.6
[I. xvi. 7].
k *g, I, xvi. 6
[I. xvi. 7, 2.];
I.rvi.8.
l lbid., 9, at
the beginning.
1 [For Florentae readjforfltfe. Tfc.] 2 [For t
3 [For amsumentur read consummentur. TnJ
44
A Treatise on Military Matters
[Part I
Dig., I.XVL
9, at end.
3-
Hid., 10.
Aufhent*
VIII. be, i, at
the middle
[Novels, viii.
* See Novels,
xxx. 5 and 10.
2, no. 52.
h Loci Com-
munes Juris
Cwitis, car.
iv, no. 7,
/am Institute,
III i, above
cited.
And in particular he should see to it that, while 1 the cases of the
more influential are tried, there shall be no neglect of the causes of
others, especially of people in misfortune, for whom, in case of need,
he will even provide a pleader. And he will take care that no one in the 10
province becomes a menace and a terror to others because of undue
power. 8 " 2 (Moreover, cases involving parents and children, or masters or
patrons and freedmen, he will settle out of court.*)
A proconsul shall not retire from his province nor cease to hold i
court until the arrival of his successor, even though otherwise the
period of his tenure is complete. And he will not allow his lieutenant
to retire, except with himself, after the duties of office are finished.
(Among his insignia a proconsul had but six fasces. 1 )
Further, he should tarry in his province fifty days in order to 12
render 3 an account of his term of service, giving public audiences and
answering complaints. 6
The proconsul was a person Very highly distinguished'. 1
CHAPTER XX
ON THE OFFICE OF PRAETOR
SYNOPSIS
1 Praetor; whence the name.
2 Formula used in installing a praetor.
3 A praetor's office lasts one year.
4 A praetor should hold court in places
sanctioned by usage.
5 Barbarius was really a praetor.
6 Jason in need of correction,
7 An error often repeated constitutes law;
and how this is to be understood,
8 A praetor is 'very highly distinguished'.
THAT 'praetor' is derived from fraeeo or fraesum was stated by
Zasius. B According to my idea, this suits better a president (firaeses). i
But the other view is supported by the reading in Novels, xxiv, where
the caption is: 'On the Praetor 5 of Pisidia' a designation applied, says
the Emperor, because those officers go before (prated) and are set over
(praepnd) all others.
Oldendorp 11 quotes the formula for installing a praetor from the 2
words of a law of the Twelve Tables.
[22] The constitution of a praetor's army you will find in Vegetius. 1
It comprised ten thousand foot-soldiers and two thousand horse.
At one time the question was raised at Rome whether, in the
absence of the consuls, a praetor could hold a consular election; and
it was decided that he could not, on the ground that it was unseemly
and contrary to ancient precedent that a lower magistrate should impart
1 [For nedwn read ne, dum. TR.]
2 [No one being willing to undertake cases against them. TR.]
3 [For rediturum read rata'fwww. TR.] * [For auc. read autk. TR,]
s [For Praestde read Praelore. TR.]
Chap, XX]
and Warfare
45
authority by the appointment of a higher. So Zasius reports Cicero,
in the reference above given.
3 As the praetor's power was limited to one year, so the actions
founded on his edicts were for the most part annual. As to which
were annual, and which continuing, see Rogerius,* an old-time Doctor.
That the Romans had praetorian provinces, as well as consular
and proconsular, is indicated by all good authorities.
4. When administering justice, a praetor should sit in a place
sanctioned by precedent; otherwise his action is void. b
That a man may appeal to a praetor if he feels himself wronged by
another praetor is shown, so far as I can recall, by a single passage,
found m Caesar. 6 Marcus Caelius Rufus, he says, undertaking to
champion the cause of the debtor class, set up his tribunal near the
seat of Trebonius, the city praetor; and if any one should appeal in
regard to assessment and payment, he promised his assistance.
There you will see also that a praetor had the power to enact new
laws; and this is abundantly confirmed by the edicts interspersed in
so many passages in the Digest.
5 It is ruled in Digest, I. xiv. 3, that a slave can be praetor, if
chosen by the people in ignorance of his status, And it is strange that
the general opinion of the Doctors on this passage is that the man in
question was not really a praetor; for the words of the law preclude
that view ('slavery was no bar', says Pomponius, 1 c to prevent his being
praetor'. So again : 'And yet it is true that he held the praetorship' 2
words which signify fact, and not a fiction.)
But it should not be assumed that this slave Barbarius became thus
a free man. For there was no ground for depriving the owner of his
right (since he ought not to sufier for the dereliction of his slave); and
the owner still retained possession, even though the slave had run
away ; d and the people in electing him had not intended manumission
though that would have been within its power had it so willed. (On
this subject there is a ruling in Code, VII. xvi. n, and XIL xxxiii. 6
and 7; and though this law was a later enactment, it still shows what
was the proper decision.)
6 It is surprising, also, that Jason doubted the statement of Baldus, 6
who held that Barbarius would have enjoyed a valid tenure of the
praetorship, even if he had been chosen by the Emperor alone. Against
this view Jason 1 argues to little purpose; for in a certain law/ near the
close, Pomponius makes the express statement: This right is to be
recognized all the more in the case of the Emperor.'
7 To the validity of such praetorship [22'] many circumstances
1 [For Pomponins read Pomponius. ED.]
2 [The reading of the Digest is : Atquin verum esl praftura eumfuntvm.T&\
3 [So in the Latin text. The reference is probably to Jason's work on the Code. ED.]
*De Diverts
Praesmptioni-
his, at the
beginning.
xlm.5;VII.
xlv. 6, with
gloss j com-
ment by
BaldusOwDz'g.
I. i. ii ; [Dig.
I. i. ii, jfc.].
Civil War,
m.[xx].
3,ro;XLIIL
iii. 15, i.
extens. 4*
i[Le.
xiv.
46
A Treatise on Military Matters
[Parti
* XIII. xv. 4.
b C,simili.[=
Novels, xciii,]
De Jurisdic-
tions Omnium
ludicum, i,
word mcdii-
d And again,
Code, XII, ii.
See Dit. I.
xviii. i.
contribute the power vested in the electors, the confidence of those
who assumed the legality of the election and the candidacy, and
consideration for the public welfare. For although it might appear a
matter of individual concern, still in the course of the year probably
so many people appeared before the praetor, and he might also have
made such enactments that it would be to the state's interest generally
that they be not rescinded. Accordingly, it would be a mistake to apply
this law to other questions where concomitants of this sort are lacking.
But on this point Jason here waxes eloquent.
That the praetor was one of the higher magistrates is shown by a
passage in Aulus Gellius; a for he says that consuls, censors, and praetors
comprise that class. In the Autkenticum* the praetor is referred to as
'very highly distinguished'. This is true also of the proconsul, the prefect S
of the watch, and the imperial prefect and prefect of Egypt; so also of
vicegerents, dukes, and counts, in nearly every case [according to
Durandus].
As to the duties and powers of the praetor, any one may inform
himself by consulting Digest, I. xiv, and Code, I. xxxix. d
At Rome there were three praetors, with power for a year only, and
selected by action of the senate. These must be bona fide residents of the
city; and provincials may not be chosen. For all this see Code, I . xxxix. 2.
Every one knows that all J the edicts quoted throughout 2 the
Digest and expounded by Ulpian were the work of praetors in the
period when the state was still in its prime.
CHAPTER XXI
ON THE OFFICE OF GOVERNOR
SYNOPSIS
1 The governor and his office.
2 Who are obliged to repair or to sell
buildings.
3 A madman should be put under restraint
by his relatives.
4 Neglect should not go unpunished when
it results in damage to another.
5 A governor should not leave his province,
6 A governor will act as judge for his own
household.
7 Whether a vassal may act as judge with
reference to an injury to himself.
8 To what extent eatables are to be
received.
9 A governor may not condemn to banish-
ment,
10 Other things he is forbidden to do; see
text.
11 With regard to punishment, very dis-
tinguished persons are not under the
governor's jurisdiction.
12 Punishment of an expert professional is
postponed, 3 and the Emperor is con-
sulted in the meantime,
THE office of governor and the name, too, are general; for all i
rulers of provinces can be designated by this term. 6
1 [Reading mnia for mni. TR.] 2 [For larl read hie. TR.]
3 [difertur, i.e. differtur.-Eu.]
Chap. XXI] m d Warfare 47
Acting as judge, a governor [23] may emancipate and adopt his
own son or manumit his own slave.* Normally he has authority only * ibid., 2.
over the people of his own province ; but if outsiders commit any crime
therein, he will not overlook it, but will see to it that the province is
cleared of evil doers. b " ibid., 3,
It is a part of his duties to prevent illegal and forced contributions
and contracts, and to provide that no one experience undue gain or
loss, that the more powerful do not injure the weaker, that no one be
barred from lawful trade or allowed to attempt illegal methods, and
that poorer people do not bear the brunt of military service and
contribution, while the richer evade them as often is the case in these
times of ours. All this is to be found in Digest, I. xviii. 6.
2 The governor will also cause ruinous buildings to be repaired
but after investigating the situation. As for my saying 'after investigat- c Dig. I. xviii.
ing the situation', understand according to the explanation of the 7 '
Doctors on Code, VIII. x. 8, whereby a municipal senator is obliged
both to repair and to build anew, while others are under obligation
merely to repair. (However, Baldus d conditions this upon the man's
ability; for the impossible cannot be required. But perhaps in such a x ' 8i
case a man will be forced to sell in order to save the city from being
defaced by tumble-down structures.) In regard to this subject another
wider distinction is made by Albericus. 6
It also belongs to the business of a governor, as I have said, to main- x - 4 *
tain order in his province. This he will accomplish easily if he diligently
seeks out and punishes evil doers, not forgetting the people who shelter
them ; for, without the help of the latter, robbery and most other crimes iDi I xviii
cannot be kept hidden. 1 i 3 . *' ' xvm '
3 As for madmen who do injury to others, in case they are persons who
cannot be kept under restraint by their relatives (perhaps because of
poverty, as in cases coming under my own observation), the governor
will confine them in prison. Regarding a person such as I have
described, I once advised a vassal (whose dependant he was) to take
this action himself, lest otherwise I should be under the necessity of
laying hands upon a retainer of his, inasmuch as the latter was truculent
and injurious to my people.
But since madness is sometimes feigned, in order that, under this
cover, people may be secure from a charge of malicious mischief, the
governor or the person whose concern it is will look into the facts of the
case, and in accordance therewith will take precaution against future
injuries; or he will take up and punish the offences already com-
mitted; see Digest, I. xviii. 13, at the end, with the following law, in
which the further direction is given that, in the case of a madman
whose attacks of insanity are periodic, inquiry is to be made as to the
time when he did the injury, also who was in charge of him, and why
A Treatise on Military Matters
[Part I
tt Dig. I. xviii,
14, at the end.
b Dig., I. xviii.
xix. 6 i.
a On Decretab,
II. i. 12, with
comment by
Felinus,
col. 2.
6 Consilium 7.
h Dig. I. xviii.
20.
he was not watched. For neglect on the part of the warders should not 4
go unpunished, whether patients injure themselves or other people, 81
A governor may not leave his province except to perform a vow, 5
and then he must not be away over night. b
Rulings are various as to the right of a governor to act as judge in 6
the cases involving his own establishment including followers, attend-
ants, and slaves. And as for crimes, [23'] especially such as cannot be
defended or condoned, he will do right not to let them go unpunished,
nor to delegate their punishment to his successor.
Bartolus, however, distinguishes between crimes that have an
official bearing and those that do not, citing Digest, XL VIII. xix. 6,
i, and Code, III. ii. 3. Again, if injury is inflicted upon the above, he
distinguishes between flagrant crimes and others which are not flagrant.
Furthermore, even in the case of a flagrant crime, the canonists
once more distinguish according as a penalty is set by law, or it is left
to the discretion of the person who judges. For in this latter case the
penalty might be unduly severe; and for that reason it will rightly be
objected to. d
And, in that connexion, they apply these principles to the case 7
where a vassal has been injured by a subordinate of his, raising the
question whether he may proceed against the latter; and they cite
Oldradus, who upholds 1 the negative. 6 This question is considered also
by Brunus/ who concludes that in strict law such action is not valid,
either on the part of the vassal, or even on the part of a judge appointed
by him. In confirmation of this view he makes many citations ; more-
over, he is supported in regard to the specific case under his considera-
tion both by the contrary practice and by the fact that the defendant
had suffered judgement to be passed. And truly with great justice it is
urged that no one should act as judge in his own case, or in that of
members of his household. 8
In laying down his office, a governor does not lose his right of
command, 11 because, as I think, it was conferred not so much for his
own benefit as for that of the provincials.
Again, a governor should be chary of accepting presents, as was 8
said above of proconsuls. But he may accept food and wine for
the following day's use. 1 Perhaps it would not be out of place to add
that even those eatables should not be presented with such regularity
that day anticipates day, and they thus become a regular contribution
so circumventing the law.
As regards his conversation, a governor should observe a mean,
being neither repellent and difficult to approach and address, nor yet
so free and easy as to be cheapened and despised; neither excessively
severe and harsh, nor on the other hand too sympathetic. 1
1 [For respodet read responded ED.]
Chap. XXI] and Warfare 49
9 ^ Governors are to understand that the punishment of banishment
10 is beyond their jurisdiction;* also that of imprisonment, either tem-
porary or permanent. b *>\ i-
It is forbidden also for them to reverse their decisions. And they ! j^ * S *
11 may not pass judgement on municipal senators or prominent men of '"'-
their province, even though they be guilty of high crimes; and still
less may they punish them, but they must report the cases to the
12 Emperor and await his verdict. Meanwhile, however, they will hold the
men in confinement , d The same procedure will be followed in regard to
a defendant who is particularly strong and skilful, 1 even though the
people are very anxious for his release. 6 e /%3
A governor may banish to places under his jurisdiction; but not m ' 31 '
beyond these limits, unless hehas the [24] Emperor's sanction. 1 He may, 'D^.XLVIIL
however, exclude a criminal from his province. 8 xxii : 7 * r '
Throughout the West thirty-one governors are listed in order in
the treatise which I have often cited above the Report to Tbeodosius.
In Novels, viii, Justinian mentions the governors of many provinces.
So in the common editions of the Authenticum? and Haloander makes
a much fuller report. 1
And no one should be surprised to find that there was sent into
the same province a superintendent, a duke, or a count, and with him
a governor either a proconsul or a praetor. For one group were
military officials, the other civil. And they severally looked after their
own departments. This system, however, Justinian found by experience
to be disadvantageous to the provincials. 1
And in our time we have seen the Emperor Charles send men into
the Duchy of Milan to have charge of both the military and the civil
administration, namely the Marquis del Vasto, Ferrante di Gonzaga,
and lastly the Duke of Sessa. Again, at times we have seen such powers
separated, so that one man had charge of the civil administration, and
the other of the military; and the experience with these was about as
described in the above citation from the Novels* (It is there 1 mentioned
that the insignia of a praetor are a curule 2 chair of silver, and fasces.) J Chap. 4.
1 [The reference is to gladiators. TR,]
3 [Various explanations of a slightly corrupt text seem possible here. The original of the Novels
suggests the reading currum ex argertto ('a chariot of silver'). ED,]
1569-64
A Treatise on Military Matters
[Parti
[241
Dig. I, xiii, i.
22.
I.ii. 2,
1CXIV. i,
i, no. 6.
* So also
Auihent.
LXXX(col
CHAPTER XXII
ON THE QUAESTOR
SYNOPSIS
1 Quaestors; why so called.
2 The quaestor is 'illustrious'.
3 The quaestor is 'exalted 1 .
4 Various kinds of quaestors.
5 The quaestor's business and office.
6 Business of the quaestor transferred to
the prefect of the treasury.
7 Quaestors in cases of parricide.
8 'Parricide' a term for simple homicide.
9 The proviso 'If the petitions are based
on fact' should be added to a rescript.
Otherwise the quaestor is remiss.
10 Quaestor the same as grand chancellor.
11 Quaestors by appointment (candidati)
and chancellors. 1
12 Dignity of the quaestor.
ULPiAN a states that the quaestorship is the earliest of Roman
magistracies, being introduced into the state by Romulus himself, or
at any rate by King Tullus, The term itself indicates that quaestors i
were named from the verb 'to acquire' (quaero); for it was their
business to collect and also to take charge of money. b Hence their
office is not unlike that of the official whom to-day we call the imperial
treasurer.
In Digest, I. xiii. I, it is stated also that the quaestorship is as it
were the introduction and first step in office holding. But in Authenti-
cum XVII , which is addressed to Tribunianus, 2 a quaestor and ex-consul, 2
he is honoured with the designation 'illustrious'; so in Code, XII. xix. 3
13, 14, and 15, Again, in the Autbenticum* the Emperor calls a quaestor
'exalted' ; but in Code, X. xii. 2 the term 'illustrious' is used.
Citing Baldus, Jason 6 recognizes three, or even four, classes of 4
quaestors; and some he rates as 'illustrious', and others as 'very highly
distinguished'. See his statement. But in the treatise already very often
cited above on Roman magistrates and the Report to Iheodosius
(where also their insignia are set forth), they are called 'illustrious'.
And it is stated that it was their business to formulate laws and 5
petitions; and that they have no suite, but call in such assistants as
they need from the secretarial department, e.g. underhelpers and clerks.
And in Novels, xxxv, it is said that a quaestor may appoint assistants in
his room, and that the full number is twenty-six,
Again, in Novels, lxxx, f an additional quaestor is appointed by the
Emperor to examine country people and other arrivals flocking into
that city.
That the quaestor's business had to do with funds is shown, not
1 [But see text below under this number. TR.]
2 [For Tribonianum read Tribunianum j but the Authenlicum itself varies in different editions. ED.]
Chap: XXII]
and Warfare
5 1
only by the citations above made, but also by a passage in Cornelius
Tacitus,* who has this to say: 'In the first instance, Valerius Potitus 1
and Aemilius Mamercus 2 were elected to attend the military depart-
ment. As the amount of business increased, two quaestors were added
to have charge at Rome. Subsequently, the number was doubled,
Italy now being under tribute, with the provincial revenues also
coming in.' Zasius 13 cites this passage, giving a reference as well to
6 Aulus Gellius, who states also that the care of the treasury was later
transferred from the quaestors to the prefects of the treasury.
(As I have remarked in its place, mention is made [25] of these
prefects in Digest, XLIX. xiv. 42, and ibid., 15, 4 and 6. Following
Bud6, Joannes Pyrrhus says these officers are the same as those to-day
known as chiefs of finance. 3 )
7 There were also quaestors in cases of parricide, as was stated by
8 Zasius. (He adds that the ancients put any sort of homicide under
this designation. 4 ) It was perhaps in this sense that Virgil said:
The qwesitor* Minos shakes the urn.
I have said above that it was the quaestor's business to formulate
9 laws and petitions ; and in this sense the word is used in Code, I. rriii.
7, where the quaestor is subject to censure if he allows rescripts to leave
the court without attaching the proviso: 'if the petitions are founded
on fact'.
10 Again, a gloss there states that the quaestor is the officer to-day
known as 'chancellor'. This Joannes Montaigne 6 understood of the
grand chancellor commonly appointed by the highest rulers to manage
their business. And in this meaning the word is found also in Digest, I.
xiii. I and 2.
The last cited law shows that some quaestors were of higher rank
than others; and that some cast lots for provinces, and that others did
not. This was stated, too, by a glossator on Code, X. xii. 2. Those who
11 did not cast lots for provinces were appointees (candidati) of the
Emperor. 1
(Aside from our purpose is what Vegetius 8 has to say on the subject
of candidati, namely that, in the distribution of supplies, there were
imperial troops (candidatf) who received double portions, while the
others received single portions. The former, he says, are soldiers of the
Emperor of the privileged das&fyrivikgiis muniuntur), whereas the rest
of the soldiers are called 'service rendered (mnifices), because they
are obliged to render service (munera). Possibly the quaestors called
candidatiwete exempt from the duties of the quaestorship, but enjoyed
its privileges and honours.)
1 [For Porftaittt read P^ft^. ED.] 2 \FoiEmlius Mamereusiead Aemilius Mamercus.^>.]
3 \$oTfimntia turn iwd financiarum.--" TR.]
* [i.e. 'judge 1 . Note the difference of spelling. The citation is from Virgil, Atnsd, VI. 432. XR.J
[xxii.]
xiv. 2, word
Quaeslores.
XIII. xxv.
[30].
. . . Magni
Condlii, &c.,
no. 5.
f-D/g. LxiiLz.
ReiMilitaris
Institute, II.
vii.
*De Magistrati-
bus Romanis,
Pt, II.
b On Code,
rubric, XII.
xvi
A Treatise on Military Matters
[Part I
Those who wish to pursue the subject further should consult
Joannes Pyrrhus. a Still better, they might refer to Lucas de Penna,
who lauds this office to the skies, b if indeed it be worthily conferred.
For, he says, the quaestor is the counsellor of the Emperor, the guide 12
and controller of his procedure; in fine he calls him the Emperor's
mouthpiece, able fitly to voice the sentiments of the latter. He states
that the quaestor suggests imperial policies to the Emperor; and that
his words determine the Emperor's conscience, and his fame and reputa-
tion, Those, therefore, upon whom such honours are conferred should
study to make their tenure an ornament and not a disgrace to the office.
On Code II.
xnw. 3 [i];.
and II. xxxvi.
2 and 3.
* Code, III.
xxvi. sjll.
xxxvi, 3; X.
.3.
CHAPTER XXIII
ON THE OFFICE OF PROCURATOR OF THE EMPEROR
SYNOPSIS
1 Procurator of the Emperor.
2 Procurator of the fiscus.
3 Chief of finance.
4 Advocate of the fiscus,
[25'] 5 Steward.
6 The chief of finance is the head of
accountants.
7 Procurator of the Emperor; his powers
in the administration of justice.
8 Procurator of the Emperor; what cases
he tries.
9 Interpretation of Code 9 IV. xv. 3.
lo Code, X. iii. 5 interpretated otherwise
than by Accursius and the other
Doctors.
11 Acts forbidden a procurator of the
Emperor,
12 The advocate of the fiscus should be
in attendance when fiscal cases are
tried.
13 A verdict is sometimes invalid.
14 Fiscal agents operate with nets,
15 Punishment of fiscal agents, if they are
abusive and unjust,
16 The fiscus like the spleen.
17 Advocates of the fiscus a necessary evil.
I HAVE been in doubt whether to speak of the procurator of the i
Emperor, or of the fiscus ; for these officials are scarcely to be reckoned in
the category of soldiers, with whom alone my treatise .deals (with a gloss,
it could truly be said of them that their fighting is like that of whelps in
the woods). But since I have stated above that all those are in the
military service who attend upon the Emperor and minister to him, I
should not pass over in silence even this officer.
I find him designated in the laws as procurator of the fiscus, 2
elsewhere as chief of finance, advocate of the fiscus, and steward 3
though I am not unaware that the duties of these were varied and J
separate, especially those of the procurator of the fiscus and the
procurator of the Emperor, as is stated in a gloss.
However, very frequently you will find 'chief of finance' put for
procurator of the Emperor , d (Further, that 'advocate of the fiscus' is
Chap, XXIII]
and Warfare
53
used of the procurator of the fiscus, and vice versa, is stated in a gloss
on Digest, XLIX. xiv. 3, 9 last line. And other titles too are used
promiscuously,)
6 Joannes Pyrrhus a stated that the chief of finance is to-day the head
of accountants, and that such officers were called by Justinian prefects
or presidents of the treasury,
7 Cornelius Tacitus b writes as follows of the procurator of the
Emperor. ^ Augustus, he says, had ordered that justice be administered
by the knights who governed Egypt, and that their decisions should
have the same weight as if rendered by the Roman 1 magistrates. Subse-
quently in other provinces and at Rome many cases were referred to
the procurators which at one time had been handled by the praetors.
Claudius gave the former full jurisdiction, and put the freedmen whom
he had set over his affairs upon a par with himself and the laws; [26]
and he directed that the validity of the judgements rendered by his
procurators should be the same as if he himself had made the decisions.
This too is what Ulpian said, c
8 The procurator of the Emperor acts as judge in cases between
private parties and the fiscus 1 (being called 'chief of finance 5 in Code,
X. ii. 3); but he does not sit in a case involving private citizens only. 6
Both these points are covered by Code, II. xxrvi. 2. However, the
jurisdiction of this officer may be extended;' 2 and perhaps that is the
9 meaning of the Emperor's ruling 8 that in case a person in debt to a
fiscal debtor does not disclaim the liability, he may be forced to pay-
ment by the procurator of the Emperor; but if he contests the claim,
this procedure is not allowable though Baldus here interprets other-
wise, saying, in comment on the law cited, that in accordance with the
standing of the person indebted to it, the fiscus appoints a suitable
judge. But this is not in harmony with Code, III. rcvi. 4 and the gloss
thereon,
The procurator of the Emperor sits also in cases that are purely
fiscal 3 h but in company with the governor, as a gloss here 1 holds on the
basis of Code, II. xxxvi. 2 3 which also calls for the presence of the
advocate of the fiscus.
Likewise, he sits in cases pertaining to the crown colonists (see
Code, III. xxvi. 7 if the introductory phrase 'to the chief of finance'
is genuine though a gloss there takes it of the prefect), unless a
criminal process is to be set in motion against the colonist in question.
For in that case the governor of the province presides, but with the
chief of accounts in attendance. 1
Furthermore, a gloss k states that the procurator's concern is^with
the most important cases, and, in another version, that his field is the
largest business transactions. But in Digest, L m. I, it is ruled that
b.] 2 [For pnungpi read pnroffarir-'t*.]
*DeMagistrati~
lus Romanis,
Pt. II.
* [Annals.Xll.
lx].
*Dig. I.xrx. i.
xxxvi. i and
4 and 6; X. ii.
3-
c Code, II. xiii.
r.
' Ibid.
* Code, TV. xv.
3-
fc Cafe, HI.
XXVL5.
i Code, III.
xxvi.8.
54
A Treatise on Military Matters
[Part I
*OnCodeX,
iii. i,
xiv, 22, at the
Dig. XLIX.
xiv. 22, i.
xiv. 5.
XXXVI. i. 23,
3-
* On Code, 111-
xxvi. i.
,
CW^IL
xxxviiancU;
X.x. 5 ;IL
viii. 4.
he may not dispose of the Emperor's property, but must administer
it diligently, though there is an apparently contrary ruling in Code,
X. iv. i and VIII. xiv. I. A gloss a harmonizes the rulings thus: The
procurator of the Emperor may not sell, though a procurator of the
fiscus may do so. This view is favoured by a gloss on Code, VIII. xiv. I,
which explains the phrase c my procurator' as meaning procurator of the
fiscus.
My own view is that we may say more simply and without
qualification that neither of these officials may sell property belonging
to the Emperor or to the fiscus; but that either may sell the property
of debtors to the fiscus. See the case in Code, X. iv. I, and VIII. 10
xiv. i; so too the case in Code, X. iii. 5, where it is directed that
property be sold to cover the delinquent taxes of wasteful persons
by which expression I understand officials in charge of the grain
tax and collection who have wastefully administered the same
though the glossator otherwise understands the phrase 'wasteful per-
sons' (prodigorum).
Again, the procurator is forbidden to sell property that is in n
uncertain status ;* so things mortgaged or given as security. However,
should he so sell, even though he promises [26'] two- or threefold in case
of dispossession, he 1 is liable only for the original amount. a
But perhaps he will sell things of a perishable nature; 6 and I
should take the same ground with reference to an unprofitable slave,
unless the latter be a deputy. 1 This principle is gathered from Digest,
XLIX. xiv. 46, 7.
However, a procurator of the Emperor does not sit in criminal
cases, if it be a question of punishment; but he may, if the property
of the defendant is in question. For both points see Code, III. xxvi. I
and 2. Nor does he sit in cases involving status, 8 though the ruling of
Code, III. xxii. 5 seems in conflict with this. A gloss 11 reconciles in four
ways; and of these the fourth is generally accepted, namely, that if
it is a question of real free birth or slavery, the procurator does not'
preside; but he may, when it is a question of status as freedman or slave.
And perhaps the logic of this is that a person who confesses himself a
freedman thereby certainly admits that at one time he was in a state
of slavery; hence the issue raised is not so vital.
Furthermore, the procurator may not impose fines, 1 and far less
may he decree banishment. 1 But, for sufficient reason, he may exclude
certain people from a definite locality; but having once banned a
person, he may not allow his return.* 2
Of the advocate of the fiscus, it is said that he should be in 12
attendance in criminal cases involving the fiscus; 1 and if he is absent, 13
1 [In the Digest reference,^fltf is the subject of this clause. TR.]
2 [See, however, the text of the Digest. TR.]
Chap. XXIII]
and Warfare
55
a verdict for the fiscus holds, but a verdict against it is void. 8 And an
information cannot be laid without reference to the advocate of the
fiscus. b
(An advocate is bound to carry through a fiscal case once under-
taken, even though he has not been paid the salaiy agreed upon. And
he may appear in cases against the fiscus, even though at another time
he has been advocate for the fiscus but not in one and the same case. d )
The advocate of the fiscus also must beware of concealing matters
advantageous to the fiscus, and of bringing false charges against private
parties in the name of the fiscus. 6
Jacobus de Belvisio 1 rails against the court chiefs of finance (who
for the most part, as the saying is, are looking for the knot 1 in a bulrush),
14 and dubs them 'highwaymen', 2 And that they operate with nets
(which, however, they spread for doves and not for kites) is the charge
of Claudius Cantiuncula, B who alludes to the well-known verse:
Pardon for the kite, harsh measure for the dove. h
15 In any case, all the procurators above referred to should beware
of subjecting the provincials to insult or loss; for if convicted of such
practices they are condemned to be burned alive. 1
16 Moreover, the Emperors should follow the lead of Trajan, who
compares3 the fiscus to the spleen, J in proportion to the abnormal growth
17 of which the other [27] members dwindle. And they should regard the
advocates of the fiscus as a necessary evil, as did Alexander Severus.
*Dig. XLIX.
riv. 7 and 3,
9, with gloss.
[X.xi.5].
c Code, II. viii.
i.
d Code, II. viii.
2.
6 Code, II. viii.
3-
f Practica Ittdi-
daria, c., no.
*DeOJici0
htdicis, tit.
De Men 1m-
perio, no. 29.
k [Juvenal,
Satires, II. 63],
1 Code, III.
xxvi. 9,
J [Ps. Aurelius
Victor,
Epiioms de
Caesaribus,
xlii, at end].
CHAPTER XXIV
ON REFERENDARIES
FINALLY, referendaries served at the imperial court. In regard to
them a title will be found in ti&Autbenticumf and the nature of their
office is made clear by another passage in the same, 1 where we thus read:
Tor we allow them to do nothing beyond transmitting our directions
only whether in writing or otherwise to regular or appointed judges.
And if they presume at all beyond this, it entails the loss of the belt'.
Their duties, therefore, are in close accord with their name,
i.e. being referendaries (referendarii), they 'report' (refero\ and make
this their business. 4 Other details as to their number and employment
1 [For nedum read nodum. The proverb (as here applied) means that these officials manufacture
occasion when there is none. For the quotation cf. Plautus, The Menaeckmi, 247, TR.]
2 [If Crassatwes is for Grassatores TR.]
a [For comprobat read compared. TR.]
4 [For carent read curent.> TK.]
lAuthent.
CXXIV.iv.
X.
$6 A Treatise on Military Matters [Part I
you may find at your pleasure in the chapter above cited.' There you
will note, further, the courtesy of the Emperor. _
For though he found the number of referendaries to be greater
than convenient, he was unwilling to discharge any, for fear of bringing
disgraceand disaster upon innocent persons. He stipulated merely that
no one should be appointed to fill the room of those who died, until
the total fell to a number prescribed.
END OF PART I.
[27']
HERE BEGINS
THE SECOND PART OF THE WORK
1569-64
CHAPTER I
GROUNDS FOR DECLARING WAR
SYNOPSIS
1 Unjust wars are brigandage.
2 The prerequisites for just warfare.
3 There is no peace apart from justice.
4 Safety is not in sword and spear.
5 Defence of the indefensible is not lawful,
Again: Things captured in an unjust war
do not become the property of the
captors.
6 Wars are waged for the purpose of
securing a habitat.
7 War for country and glory.
8 The Gauls invaded Italy because of its
wine and crops.
9 War to ward off injury.
10 Force may be met with force.
n It is lawful for Christians to go to war.
12 Rules for Christian soldiers.
13 War allowable for country and for
sovereign.
14 To go to war for plunder is not per-
missible. So no. 15.
ALL good men agree that wars are to be undertaken only for reasons
1 that are at once serious and cogent and just. Hence Baldus* declared
2 that unjust wars are sheer brigandage. And again he says 11 that for a
just war five things are prerequisite: these are a just person, a just
matter, a just cause, a just intent, and due authority. This he copied
from Hostiensis, who says the same thing. However, these five
prerequisites are reduced to three by Astensis* and by [28] Cardinal
Cajetan 6 (namely, to person, cause, and intent as elaborated by both
in the passages cited), So all the canonists. 1 And it would be possible
to limit even to two of the above person and cause; for the former
includes intent and authority, and the latter includes matter and cause.
For although Baldus 8 says that in war the justice of might may be
one thing and the justice of cause quite another, I do not believe that
one can be separated from the other; for war is not made aull, if the
power is wanting; and it should not be made if just cause b lacking.
3 For in war there is no other objective than peace, and there is no peace
apart from justice 1 ; as the Psalmist says: 'Righteousness and peace have
kissed each other. 3 * .
Rulers, then, should have before their eyes and in their hearts that
4 which is written :' 'The battle is the LordY, and 'The Lord saveth not
with sword and spear' those who fight. Moreover, they should be warned
to take to heart the fact that the Lord will be their judge; and that he
who engages in an unjust war is in duty bound to make good, and
render satisfaction for, all losses suffered either by his own people or
by the enemy. So said Innocent,' who is cited and Mowed by
Martinus Laudensis * And this applies as well to a person who defends
II, tit. xxvin,
chap, i, no. 6.
b Consilium
439 (beginning:
Ad bdlum
iustum),
c Summa' t tit,
(
Pace, quid sit
iiistum, words
sunt tamen qm
dicunt.
d Summ, I,
xxix.
helium, near
* On Decretals
II. xiii, 12; II.
xxiv, 29.
* On Decretals
II. xxiv, 29.
Ixxxv. 10.]
1 1 Samuel,
xvii[47].
1 On Decretals
II. xxiv. 29 j
I.xl. 7.
1 [For instiiia read iustitia. ED,]
14.
59
6o
A Treatise on Military Matters
[Part II
II, tit, xxvin,
chap, i, no. 5,
Pace,
col, 2, words
ego dico.
On Decretals
HI. xxxiv. 8.
d On Deeretum
II. xxiii. 2. 2.
7, latter half.
* On Feuds Bk.,
II. tit. XII, no,
8, words sed
numquid quod
capitur.
(above cited),
col. 2.
1 See also
Decretum, I. i.
9-
himself against the claims of justice, as to one who is aggressive in his
injustice, as Baldus a well remarked. And Calderinus* declared that in 5
such a case it is not permissible to defend even one's own country.
Further, they should remember to what great cares and perils
they expose soul and life because of the dangerous and uncertain issues
of war. And they should also have before their eyes the Cardinal's
statement that things captured in an unjust war, whether cities or
other things, do not become the property of the captors, but must be
restored. And on this ground the same writer assumes that confessors
who absolve such persons are in the wrong, and that in throngs they
are all on the road to perdition. And he adds that in this matter a
praescriptio [longi] tmforis does not hold,
Furthermore, being Christian rulers, they should understand that,
even when they have undertaken war for just cause, as soon as they have
realized enough from the war fully to indemnify themselves for the
occasion that gave rise to hostilities, they should terminate the war. (On
that point there is a gloss d which is discussed at length in the Summa of
Tabia. 6 ) But this I do not insist upon, because Baldus 1 takes the other
view, even with the support of theologians.
Again, Calderinus 6 stated that even when war is declared on just
grounds, if it is waged ruthlessly and with a view to vengeance, it
thereby becomes unlawful, so that things captured may not rightly
be retained.
However, no one ventures to oppose a sovereign; and adulation is
more acceptable and expedient than candour. [28'] No wonder, then,
that very frequently the ruler's caprice is counted a just cause for
making war.
But, to come now to the causes of war, who could easily catalogue
them ? Or who could recall all the peoples who in the long ages of the
past, with a view to finding a new habitat (either weary of old familiar 6
scenes, or forced to leave them) have drifted about like a swarm of
bees, attacking savagely any who lay in their way, thinking this their 1
right under the law of nations ? h
Thus it was that the Jewish nation left Egypt for Syria and
Palestine; so, much later, the Cimbrians invaded Gaul and Italy,
though opposed with better success. Again, some years afterward, the
Helvetians entered Gaul above mentioned, meeting about the same
fate. So Ariovistus 2 ; and, in that same period, the Usipites and Tenc-
teri3. Thus (with greater loss to Italy and in fact to the whole world)
the Goths, Vandals, Alani, Huns, and Lombards brought ruin and
devastation to many a province. So the far-famed Tamerlane within
the recollection of our great-grandfathers, like a resistless torrent,
1 [For idstii read id jifo'.-ED.]
3 [For Ten&tmi read Twcleri. ED.]
! [For Anmisius read Ariovistus. ED.]
Chap. I]
and Warfare
61
overran and outraged all Asia Minor. And to the great loss and disgrace
of the Christian name, even greater success attended Othman; for
emerging either from Scythia or Persia, and accompanied by many
peoples drawn on by the lure of loot and plunder, he fought to such
purpose and reached such a point of success that no greater realm than
his has been seen or heard of since the days of the Roman Empire,
And those wars are most desperate of all, where the struggle is not
for empire or for glory, but for altars, for home fires, for children and
wives, and in fine for life itself, For, as Cicero says a , it is then not a
question which party is to win, but which is to survive. Of this general
character were the wars which the kings of Assyria are recorded 1 to have
waged against the Jews, b carrying away the conquered to far distant
lands.
7 We read also of not a few wars waged for empire and for glory,
for example, the wars of those first world conquerors, the Chaldaeans
and Assyrians, then of the Medes and Persians, so also of the Mace-
donians and Greeks. These victors deposed rulers and set up others,
but showed mercy to the residue. And on this principle Pyrrhus thus
waged war with the Romans according to Ennius, putting only this
one point to the test:
Whether to you or me Dame 2 Fortune wills control.
Thus, too , in their turn the Romans carried on war with Latium and
the other districts of Italy, with the Gauls, the Carthaginians, and the
Macedonians; also with Antiochus and Mithridates.
But why search further for causes, when the Iliad is filled with the
story of Europe and Asia in the grip of a mighty conflagration, all on
account of a mere wanton ? another poet thus commenting : d
Ere Helen's time was woman's lure the direful cause of war;
But perished they in deaths 3 unsung . . .
8 And why multiply causes when Livy 6 states that in the first instance the
Gauls crossed over into Italy because they were captivated by the
richness of its wine and crops ?
9 More righteous are the [29] wars that arise from the desire^to
escape injury, or even to avenge the same, 1 whether a person is righting
a wrong done to himself, or to some other his ally, friend, or associate.
10 Surely nature teaches us to oppose force with force, and arms with
n arms. 6 And this applies to Christians as well as to other peoples.
If this were not the case, John, that man most acceptable to God,
n would not have counselled the Roman soldiers (who came to him
anxious about their salvation) 'to be content with their wages, to do
violence to no man, and to accuse none falsely' [this he would not have
[For rmar read wrariV'-ED.] . 2 [H^a probably is for A^Le-T
3 [Thetextof Horace has wor/z6 win place of om'&Mj.-TR.] * [For pe. r
xxxviii].
b 2 Kings, xvii
[Annals VI.
197, V.]
d [Horace,
Satires, I. iii.
107 ff.]
V[xxxiii.2]. 4
II, xxiii, 2, i.
and Decretum,
II. xxiii. 1. 1.
A Treatise on Military Matters
[Part II
a See St. Luke,
iii. [14!;
Decretum, II.
xxiii, i. 2, 5,
* 0* Code "XH.
XXXV, I.
I, VIII.
648.]
d [Horace, Odes,
III. ii. 13.]
6 Zte Pflfff Con-
slantiae, i, 9.
* See Dig. I. ii.
2, n;I.iv. I,
XCVIII,near
the end.
* Decretum,
II. xxiii. 5, 18,
20, and 23.
1 Decretum, II.
xxiii. i. 3.
viii, 8-13.]
fc Decretum,
II. xxiii. i. 4.
done, I say] unless, through following this advice, they would them-
selves find salvation, 01
Truly his was a short rule, easy to repeat, and suitable for soldiers,
who dislike long rules and regulations. But it is very hard to put it into
practice, and not many observe it. For the soldiers of our day, careless
of salvation (being persons who either do not believe in God or do not
fear Him), make a business of plundering and all sorts of outrage.
And justly they are excoriated by Lucas de Penna b always excepting
those who are good.
And inasmuch as it is permissible to fight on one's own behalf, much 13
more may we do so to save the state, i.e. in defence of liberty and father-
land. Hence this word of the poet:
'Gainst levelled steel, for liberty, the Trojans forward surged.
So another bard: d
A joy arid splendour it is to die for country.
And the commoner word of the sage ; 'Battle for the fatherland' a
half-verse 1 which Baldus did not scorn to quote."
And no less should arms be taken up for one's king, Emperor, or 14
lord, For he is the guardian and mainstay of the public weal, now that
it has seemed wise that government be vested in one individual/
Consequently, we must reverence and protect him, just as we should
the fatherland, inasmuch as the sovereign is a common parent to all/
and his power has not been established for naught. 11
And, in such a war, the person who kills a man will not be guilty
of homicide in the sight of God. So Decretum^ II. xxiii. 5. 13; and
Augustine, writing to Boniface, says: 1 'Do not think that none are
acceptable to God who serve with the arms of war. For David, a
man after God's own heart, and the centurion whose faith is com-
mended by divine word, 3 and many other very righteous people have
engaged in war,'
And in another passage Augustine states k that it is no wrong to go 15
to war; but that it is a sin to do so for plunder. And he adds that even
killing is not blameworthy in war; for those who thus lose their lives
are bound to die sometime; so that he who condemns [29'] killing, or
shrinks from it, is not so religious as faint-hearted. But, says he, we
should frown upon delight in injury, ruthlessness in vengeance, an
implacable spirit, lust of empire, and other such things.
1 [For emistichion read hemistichium or hemistichion. ED.]
Chap, II]
and Warfare
63
CHAPTER II
WHETHER ONE SHOULD ALWAYS OBEY HIS RULER'S CALL TO ARMS
SYNOPSIS
1 Under what circumstances one should
obey his ruler's summons 1 to war.
2 One should not obey his ruler in defiance
of the laws of God.
3 Whether a vassal is bound to serve his lord
in an unjust war.
4 A soldier serving in an unjust war is
liable for losses inflicted upon the enemy.
5 Soldiers who at the sound of the drum
rush to a war, without regard for its
justice, are clearly in a lost state.
6 Defensive warfare is not lawful for one
against whom war has been justly
declared.
7 A ruler may not force a subject or vassal
to render him service in war, if the war
is manifestly unjust.
1 WE now take up the question whether there should be unquestion-
ing obedience to a ruler, even though he is waging an unjust war.
And Augustine 1 has this to say: The decision and authorization for
making war lies with the ruler ; and if from carnal passion he wages war,
this affects not the righteous'. And a little later he adds: There is no
power except from God, who either bids or allows. Accordingly, if a
righteous man chances to serve under a wicked king, it is right for him
to fight under the latter's directions; for the unrighteousness of his
orders may bring the king into condemnation, but the rule of service
exonerates the soldier' (he adds, however: 'unless the king orders
2 something that is contrary to the law of God').
Further support for this view is found in Decretum, II. xi. 3. 94,
where it is said that though Julian was an apostate, he yet had under
him Christians, who were obedient when he directed them to take up
arms. (A gloss there is irrelevant, which states that this was condoned
by the church in order to avoid controversy. For at that time the
church had no standing in secular courts, as appears from the chronicles
and the statement of Felinus. 13 )
But the jurisconsults, following a gloss, declare that when the
3 injustice of a lord is clear and manifest, a vassal is not bound to assist
the lord ; [30] so all comment 11 And though it might easily happen that
a vassal thus puts himself in peril, there is no escape from the rule
'We ought to obey God rather than men' 6 ; for it is a question of right
and wrong, and not of expediency or inexpediency^ If, however, the
injustice of the lord is not established and the soldier is a subject of
this ruler, obedience must be rendered when the latter calls. But if the
a Decretiim, II.
xxiii. r. 4,
b On Decretals
I. xxxiii.
8, col. I,
I f tit v, chap.
i.
* Ibid.
: [For vacanti read vocanti. TR.]
6 4
A Treatise on Military Matters
[Part II
I, tit. v, chap.
i, col. 3, no, 4.
* On Decretals
II. xxiv. 29,
el. 3, col. 6.
c Dig. XVII. i.
22. 6; and
XVII, i. 6, 3;
so Panoimi-
tanus, On
Dewetals II.
xxiv. 29, no.
16.
d See Innocent,
On Decretals
II. xxiv. 29,
and Panormi-
tanus, ibid.,
qu-5-
*Summa,
III, tit, iv,
chap, ii, i.
b word
lellum, 6, at
the end.
I, tit. V, chap.
i, no. 4-
i Investitwa,
gloss, words:
Et promiserunl
domino prae-
stare debita
servitia, qu. 5.
near the be-
ginning*
xxiii. 2. 2, and
II. xxiii. 4. 6.
xi, 3. 100.
soldier is not a subject, it is safer for him to keep out of the war. So
Baldus* and Panormitanus. b
Otherwise, in fact, a soldier is liable to the enemy for the losses 4.
he inflicts upon them, according to the comment on Decretals, I. xl. 7:
furthermore, if he himself suffers loss, he has no action against the
person whom he is serving, for both are engaged in unlawful enterprise,
and action is not allowed with respect to something disgraceful and illegal.
But if his service had been rendered in a just war, as a mandatee he would
have ground for action against the lord to recover for the loss sustained. 3
Volunteers to-day the most numerous class should beware,
therefore, of putting themselves in jeopardy not so much because of
the danger of loss of action (this procedure being to-day obsolete), as
because of peril to their souls; for, as I have said, it is not lawful to
serve in an unjust war. They should follow rather the advice of
Alciati, 6 who urges that they leave an unprofitable service in preference
to becoming thieves and losing the favour of God. Would that these
words of ours might not fall upon unheeding ears.
Furthermore, the mercenary soldiers, too, should have a care
who, as Cardinal Cajetan 1 says, the instant they hear the mention and
tumult of war, rush to the clinking coin, with never a thought about 5
justice or injustice. For such, he says, are manifestly doomed to endless
perdition, if they do not reform. So also said the Archbishop of
Florence, 6 whose Summa is quoted and followed by Tabia. h According
to them, such soldiers should not be absolved, unless they renounce
their calling, or at any rate turn to the service of justice.
Yet there are some who hold that, even in an unjust war, vassals
and subjects are bound to protect their lord from injury and to defend
him, though not obliged to aid him in aggressive warfare. So Baldus 1
said; on this see also Jacobinus de Sancto-Giorgio. 1 Again a passage
with like bearing is found in the Feudorum Libri* wherein Obertus de
Orto and Gerardus Capagistus 1 are quoted as saying: 'Let the vassal aid
his lord, to the extent of defending him; whereas in case of offensive 5
operations against another, he may aid him if he so chooses.'
For my own part I doubt the soundness of this, in view of the
mixed character of wars, which in part bring force to bear and in part
resist it, i.e.' they are partly aggressive and partly defensive. And since
it is a question of the permissible and the not permissible, it can hardly
be that it is permissible to resist a party enforcing his right under the
law of [30'] nations. Again, on hardly any grounds are the peoples of
an offending king fair plunder for the enemy, unless it be that
they support him in his iniquity and uphold a wrong cause (for that
man is not less guilty who supports another who does wrong than is
the person who commits the wrong 1 . Whence also it is stated 1 * that he
1 [So in Feudorum Libri. Belli has Cagapistus. ED,]
Chap. II]
and Warfare
who protects an evildoer should himself be dealt with more severely
than the one who commits the wrong). And, finally, I feel doubt
because it is impossible that when two kings or two peoples are at war,
both parties should justly be so engaged an example of the argument
from contraries. My dissent is confirmed by the statement of Bartolus*
on the case of a person banished, to the effect that where attack is
justified there can be no lawful defence.
And although in the rebuttal which in this connexion he formulates
on the basis of Digest, IX. i. I, n, he distinguishes between natural law
and the law of nations saying that in the one case it is permissible to
act on the defensive and to ward ofi attack, whereas it is not permissible
in the other I fancy that under the first head he is speaking, not of the
law that differentiates the just from the unjust, but of the law, i.e.
the natural instinct, inborn in living creatures, which bids them cling
to life and, therefore, to save themselves in any way they can.
To this view Baldus b seems to incline, implying thus that the afore-
mentioned Obertus and Gerardus were merely two animals, having no
regard for the civil law, the law of nations, or the divine law; for, says
he, unjust wars are open outlawry. This I have stated above also, and
the view is supported by what is there said, with citation of Calderinus, e
who declares that it is not permissible to defend even the fatherland
against war justly declared. This same statement was made also by
Cardinal Cajetan,* who quotes Decretum, II. xi. 3. 97.
But, whatever the distinctions drawn by the Doctors, it would be
a perilous thing for vassals and subjects to pry into motives. And it is
the safer plan to follow the orders of their lords, whether the wars be
offensive or defensive. De AfHictis, following d'Isernia, 6 inclines to this
view. And although Lucas de Penna* (who is likewise cited by de
AfHictis on the Feudorum i^n, 6 where he takes up this subject again)
seems to distinguish between vassals and subjects, and between cases
when kingdoms are threatened by barbarian invasion, and when some
other less perilous issue is involved, yet I think it the safer course to
accept without qualification the rule above set down, namely that sub-
ordinates should follow the orders of their lords; and this harmonizes
with the view of St. Augustine.*
There is confirmation also in the statement of Baldus 1 that in case
of doubt it is to be presumed that kings are warring against one
another in accordance with the law of nations; and though the war may
be unjust as regards the prime mover (i.e. the king), yet the fact of
compulsion makes it lawful as regards his subjects; for the lord is an
administrative person who must be [31] obeyed. He adds, however,
that this holds good in the eye of the law; but that the case would be
otherwise in the court of conscience, when subjects do violence to their
sense of right. Thus Baldus.
1569.64 K
following a
gloss there,
II, tit.
XXVIII, chap.
1, at the begin-
ning, nos. 5
and 6.
Consitia, I
(above cited),
De Treuga et
Pace.
d On the Con-
stitutions of
Clement IL^.
2, ceterum.
j,.
I. tit. v, chap.
i (above cited),
col. 3, words
quid autem si
est dubium.
* On Code XL
Iv. i, col. 3,
near end.
6 II. XXVHI. ij
at the begin-
ning.
h Decretum, II.
xxiii. i. 4.
358 (Licet
latmnndis}.
a Consilia, I.
483 (Magnifi-
cus), no. 4.
66
A Treatise on Military Matters
[Part II
But the same writer again says a that, when a war is unjust, lords 7
may not force subjects to aid them. However, my view is that the man
will not go wrong who urges this point upon the lord, while advising
the subject (to repeat for the third time) that he obey without question,
unless the ruler's injustice is flagrant.
II, tit. li, chap,
i, at the begin-
ning, no. 17.
c Consiliuni
234 (Factum
tale est t quidam
miles).
* Tractates
Feudorwn, Pt.
I, qu. 8, col. 9.
* On Cob VI.
li, sole law 9,
near the end,
words habeo
duofeuda: and
on Feuds, Bk.
II, tit. xxviii,
54-
CHAPTER III
THE EXTENT OF A VASSAL'S OBLIGATION TO HIS LORD IN WAR
SYNOPSIS
1 In what cases a vassal is excused from
rendering military service.
2 To which shall a vassal of two rival
belligerents render service ?
3 A liege vassal should give his lord
preference over all.
4 A vassal holding a fief may not accept
a liege fief from another lord.
5 How shall a vassal proceed who does not
know which lord has the earlier and
older claim ?
6 When the vassal of a vassal should serve
the overlord.
7 Interpretation of the rule 'A vassal of
my vassal is not my vassal',
8 Subvassals are not required to swear
allegiance to the overlord.
9 However, there are exceptions ; which see.
10 The heirs of a vassal are not bound to
render service in full 1 to the lord.
11 The vassals of a duke will serve the king
(who is lord of the duke), and not the
duke against the king,
12 In a general war a vassal should serve
the overlord; in a private quarrel he
will serve the local lord.
WE must recognize, however, that a vassal is not bound in a general
and indiscriminate fashion to the service of his lord in war. For, in
the first place, there is exception in the case of a free fief, according to i
Baldus b . For, says he, 'free' signifies the same as 'independent' with
due allowance for points specified in the investiture. (If, however, the
vassal is bound to serve in some case, it would be at the expense of the
lord, and not at his own. So Baldus here, followed by others; and
the original statement was made by Oldradus. Discussion of the free
fief [31'] is found also in the writings of Curtius. d )
In the second place, there is exception if a vassal has previously 2
been invested with a fief by another lord, and the two lords go to war
against one another. For in that case the vassal will render service to
the prior lord with person and counsel, but not to the second (for
counsel is not divisible) ; and he will give financial support to both,
according to the nature and character of the fiefs, So Baldus 6 - who,
however, adds one point not to be forgotten, namely, that a vassal who
undertakes feudal obligation to a second 1 lord must inform him regard-
ing the prior lord, and stipulate that the latter's right be not infringed
1 [For insolidwn read in solidum* ED,]
Chap. Ill]
and Warfare
6 7
(this is mentioned also by a gloss on the last citation) ; otherwise the
vassal is bound to support the second lord.
And regarding a vassal who has two lords by virtue of holding
different fiefs Baldus discourses a second time, a stating that the vassal
must send support to each of the lords in accordance with the character
of the fiefs and the property which he holds from each. As for personal
service, he says, the vassal will choose according to his conscience, serv-
ing either the lord who is clearly in the right, or the one higher in rank
(as sometimes happens) ; but within the fiefs he will serve the prior lord,
And again Baldus treats this subject at greater length,* stating that
3 in the case of a liege fief the vassal must not fail to support his lord,
even though the latter be not prior otherwise the lord may say to
him c He who is not with me is against me'. (You will find here a
lengthy discussion of the liege fief.)
Baldus makes further reference to this topic in his Consiliaf where
he states that a vassal owing equal allegiance to two lords will give the
preference, in the matter of personal service, to the one whose cause is
more manifestly just.
And here another question arises : A person is invested by a duke
with one fief; later he chances to succeed to an agnate of his in another
fief which has long been in the family, and therefor he swears allegiance
to a second lord. Supposing these lords to go to war with one another,
in which character will the vassal be said to have taken the earlier 1 oath,
and thus to have bound himself by the principle of prior fief? And it
might seem that we should say 'to the duke' for the oath was first
taken to him, and, being prior in time, he is prior in right also. But
the reverse is the truth, as was pointed out by de AfHictis, d who cites
Jacobus de Ardizone; 6 and he might have quoted also a passage in the
Feudorum LibriJ where there is a very similar case : A man held two fiefs
from different lords, and had safeguarded the right of the prior lord. His
two sons divided the estate, 2 and each of them took over his fief from
the lord in question as a liege vassal, i.e. agreeing to support that lord
against all comers. On the death of one brother, and the reversal of
his fief to the survivor, that fief will revert to the status in which both
fiefs were in the father's day, with no regard for the sons' later [32]
oath of allegiance.
Again there is exception, 3 if only one of two fiefs is a liege fief, i.e.
as I have explained, a fief whose holder makes reservation in favour of no
4 one. So Baldus. 8 (But a vassal who already acknowledges a previous
lord should not accept a fief from another on such terms; for he may
not infringe upon the right of the prior lord. h )
5 But when each of two fiefs is so ancient that it is not known which
a Consilia, III.
314 (Ista
quaestio).
b Consilia, II,
291 (Ad
svidsniiatn
pmemit-
tendttm), col.
2, near end.
III. 313 (Ista
qitaestio), at
end.
II, tit. xxvin,
I, tit. Tin,
convenit
text of chap.
extraord.
cxlix, 21.
1 II. Lit. ii.
tOnFfuds,
proem, no. 52.
* So Baldus
ibid,, and on
II. xxviii. 4.
1 [For prios read fnus. TR.]
3 [See other exceptions in nos. i and 2. TR.]
68
A Treatise on Military Matters
[Part II
II, tit. XXVIH,
4, no. 45.
b On Dig, I. v,
10, first
lecture.
. 23.
II, tit. xxvi,
8, col, 7.
OnflfcXIX.
ii. 26.
* Durandus,
Speculum, tit,
Quoniam, qu.
12, with many
following.
eThelastpnthe
final section of
Feuds, I. XXIII.
i Ibid,
XLIV. iii. 14.
k lI.LV,i.6.
l Phcitaprinci-
pum seu con-
stituiiones
regni Neapoli-
tans, on law i,
de assecura,
dm.
is the prior lord, the vassal will serve the greater; and in case their
standing is equal, there will be room to show favour, according to de
Afflictis. a But Baldus b rules that the vassal will serve the lord from whom
he holds the more important fief; and this seems to me more reasonable
than the rule of de Afflictis regarding the lord of higher rank. For
since the vassal is assessed according to his holdings, the larger fief
should outweigh the smaller.
There is another similar question: When several sons directly
succeed a lord, to which of these sons shall a vassal render service if they
fall to fighting with one another ? Baldus says that the vassal will serve
the elder, or the more worthy, or no one of them at all; for they are
standing in one another's light. Thus also Alvarotto. d (But understand
all this of things indivisible, e.g. person and counsel, as I have noted
above. In regard to things divisible the case is different. So Baldus; 6
and see elsewhere 1 discussion of the whole subject at greater length.)
Furthermore, there is exception in the case of a vassal of a vassal; 6
for such a one, according to a gloss, 6 is not bound to serve the overlord.
As a reason why 'my vassal's vassal is not my vassal', while yet the heir
of an heir is an heir of the principal, Baldus h points out that, in the case
of an heir, this is due to the aggregate of rights which passes over to
him, whereas in the case of a vassal there is no such transfer, says the
law, unless by prearrangement and contract with the grantor, and
because, 'he has not the first claim (causa) upon me, nor the second'.
However, Baldus himself here dissents, and he is followed by Alvarotto, 1
who says that the overlord by withdrawal of fief will compel the vassal
to render him service.
(But with regard to my citation above, 'My vassal's vassal is not my 7
vassal', you must read and interpret this in the light of the difference
between fiefs. For, as a gloss points out, 3 if I am your vassal and you are
vassal to another, it does not follow that I too am vassal to the last
named; but if on behalf of one and the same fief I recognize you as lord
and you so recognize another, then I too am the latter's vassal as in
the case of subinvestiture. So Bartolus held on Digest XLIV. iii. 14,
expressing himself more clearly on XX. iv. 16. And a passage in support
of this view might be cited from the Feudorum Libri?)
Moreover, Andrea d'Isernia 1 fully discusses this point, reaching the
conclusion that in 1 certain particulars a subvassal is vassal to the over-
lord, while in 2 others he is not even though the fief be one and the '
same. Consequently, according to him, the subvassal will swear 8
allegiance, not 3 to the overlord, but to the immediate lord; and [32']
the fief will be under the direction of the latter, and not of the over-
lord. He adds also that Robertus de Campis, who held a fief from the
1 [For quo ad gwedam, read quoad quaedam. ED.'
::]
3 . [Before prim insert mm. TR.]
Chap. Ill]
and Warjare
6 9
church, ordered the vavasors under pledge of loyalty to him not to
swear allegiance to the church. Baldus a says also that by letter of the
law the sub vassal is not vassal to the overlord; but that on the merits
of the case he really is a vassal,
9 And again Baldus* declares that an overlord does not exact an
oath of allegiance from the subjects of his own vassal, unless formally
so provided in the investiture, or unless he has general jurisdiction in
that territory. He cites Durandus, and he is himself cited by Jacobinus
de Sancto-Georgio, d without comment, as is the latter's usual custom.
This is to be noted with respect to the subjects of the vassals of
dukes, marquises or other rulers who are overlords of a district. The
principle was stated originally by Oldradus, 6 who says that the vassals of
a baron who sets out under a general order to serve the king are
counted as in the service of the higher power, and so are relieved of
obligation to the baron. He adds also 1 that there is no ground on which
a baron may compel his vassal to serve his lord and superior, i.e. the
baron's own overlord.
10 How now in the case of several heirs who succeed the same vassal ?
Are all liable ? If we assume that service consists in contribution, they
are liable individually and in proportion to the share of the fief falling
to each. If, however, service consists in personal attendance, then
some one will be liable in full (such being the nature of an indivisible
obligation; and this individual will render service for all), or they will
agree among themselves who shall serve. 6
11 What has been said above bears upon another question: If a duke
rebels against his king, should a vassal of the duke serve the duke or the
king ? This question is treated by Durandus, 11 who holds that the vassal
will serve the king. But Jacobinus de Sancto-Georgio 1 takes the other
view, making a distinction, however, according as the overlord has
direct jurisdiction in the territory or not.
Such a case happened in our times. A certain noble vassal of a duke
was in the service of the Emperor. The duke, in company with other
leaders, made a conspiracy against the Emperor, and this noble vassal
delivered over his state to the duke, thus rebelling against the Emperor.
For so doing he was challenged to a duel by another noble, a comrade-
in-arms, who charged him with being a traitor. On this issue he
defended himself on the field of honour and was vindicated*
Yet it might be said with the Lombard law We have seen many
fall under a just shield'. 1 For, as a matter of fact, the ordeal of the duel
is no test of verity, but rather of rashness and chance. But, as for the
[33] noble in question, he was afterward regarded even by the Emperor's
party as a loyal and brave man, and important strongholds and forts were
entrusted to him, With regard to these he acquitted himself honourably.
1 [i.e. though their cause was just. TxJ
* fa Code VI.
xliii. i, col. i,
words quaero
testator.
b De Pace Con'
stanliae, last
sec., col. i,
* Speculum, tit.
On Feuds,
Quoniam
(above cited),
clauses 14
(quaerilur) and
IS-
d Investitura
(above cited),
gloss, qui
quidem inve-
stiti prae-
stiierunt
no. 14.
6 Consilium
234 (above
cited).
* Ibid., words
non videtur.
sSoDuran-
dus,W.
Quoniam t
(above cited),
qu.9.
On Feuds
(above cited),
Quoniam,
clause 14
1 Investilwa
(above cited),
promismtnt
debtia seruitia,
qu. 10.
f
Quoniam
(above cited),
qu. 15.
c Inuestitora
A Treatise on Military Matters
[Part II
But on this question Martinus Laudensis a took the contrary view,
k^ innins declaring that the summons of his lord does not excuse a vassal, because
it is the latter's duty to serve the higher power. This position he
supports at length, and I think this view the sounder in regard to cases
where the fief is owed through another to the overlord.
Durandus b raises also another question: If a baron is engaged in a 12
war of his own, and the king in another, to which of the two should
an immediate vassal of the baron render service? Durandus judges
that service is due to the king, on the ground that there is public utility
in the defence of the kingdom, and that private interests must give
way. But if the King's war also is of a limited character (e.g, against
another baron who had taken up arms against him), the right of the
immediate lord will prevail, and to him service will be rendered. Such
is the distinction made by Jacobinus de Sancto-Georgip, c who considers
(above dted), this subject at length.
* On Feuds I.
v. at the begin-
ning, no. 4.
Ibid,, cols. 3
f On Feuds II.
11, 7, and II.
xxiv, 6.
Gloss (above
cited) et
promiserunt
Ifraestare
debita sermtia] f
no. 3.
* On Feuds 1.
v, i.
CHAPTER IV
WHETHER A VASSAL IS BOUND TO FOLLOW HIS LORD TO A
FOREIGN WAR
SYNOPSIS'
1 A vassal follows his lord to war outside
the district.
2 Whether a vassal follows his lord in war to
a remote district as well as to one near by,
3 Whether a vassal follows his lord outside
the district both for aggressive purposes
and for defence or for recovery of losses.
WHETHER a vassal is under obligation to accompany his lord out- 1
side the district is a question raised by Baldus. d He concludes that the
vassal is bound so to do, and adds that if the King of France should
invade Ireland with hostile intent, a vassal who refused to follow would
lose his fief.
De AfflictiSj 6 however, restricts this to cases where it is a question 2
of avenging an injury done the king. In my judgement it would have
been simpler and better to have said that the rule holds in the case
of a war of necessity and not of arbitrary choice. He cites d'Isernia; 1
and see also Jacobinus de Sancto-Georgio, 8 with my remarks above.
[33'] There is further restriction also: if the district to which the 3
vassal is taken is near at hand; and if it is a question of reclaiming it, and
not of acquiring it. For this see d'Isernia, Alvarotto, and others*,
But even though the war is waged in remote localities, the vassal
1 [This synopsis does not articulate perfectly with the text. TR,]
Chap, IV]
and Warfare
will still be obliged to follow the lord if the latter has been in the habit
of proceeding to other like places; for this is tacitly assumed to have
been the arrangement from the beginning. An illustration is found in
the case of the King of France; but to-day a better example is afforded
by the Emperor and the King of Spain, who is accustomed to undertake
expeditions into all parts of Europe and even into Africa, and to take
himself and his armies thither. The original statement is found in
Durandus.*
CHAPTER V
WHETHER IT IS PERMISSIBLE FOR A VASSAL TO DESERT HIS LORD IN
BATTLE
SYNOPSIS
1 A vassal should not desert his lord in
battle.
2 Exception: if he sees him dead or
mortally wounded.
3 What if his presence will be of no benefit
to the lord ?
4 A vassal may withdraw if seriously
wounded.
5 What if his desertion worked no ill to
the lord ?
6 What if the lord dies of neglect, though
his wounds were not mortal ? Should
the desertion of the vassal be excused ?
7 And what if he fled through fear, with-
out ascertaining that the lord's wounds
were mortal ?
8 Whether a vassal may desert his lord in
an unjust battle or war.
9 The difference between deserting in war
and in battle.
10 An untimely dissolution of association is
not permissible.
11 A vassal who cannot help his lord is
justified in looking out for his own
safety.
1 A VASSAL is bound to follow his lord even to such a degree that he
may not desert him in battle and look out for his own safety by retreat-
2 ing, unless he sees the lord dead or mortally wounded. 11 Even so there
3 is restriction: in case it was in his power to aid or rescue the lord.
(The expression 'it was in his power' Baldus* says is worthy of special
note. And, he adds, a deterrent must be of serious character and the
result of no fault ; for otherwise the vassal will not be excused.) There is
[34 1 ] a similar ruling also in Digest, XLIX. xvi. 3, 22 and vi, 9.
A Again, it is stated in a gloss 6 that if a vassal has withdrawn from the
fight suffering from grave injuries, e.g. being worn out with wounds or
having maimed arms, he is excused. But suppose that the lord, too, is
at the point of death, being desperately wounded, and after the with-
drawal of the vassal he succumbs to these wounds ? Baldus* argues this
question, at length concluding that the vassal is excused. (But this
discussion is superfluous in view of the above-made citation ; g for there
1 [For p. 33 read p. 34. ED.]
* Speculum, fa.
On Feuds,
Qtwniam
clause 23.
tit. v, cap. i, at
the beginning.
c Ibid., xxi. ii,
at end.
e On chap, i,
above cited.
A Treatise on Military Matters
[Part II
xvi. 6, 3.
b OH Feuds,
I.v,chap,i,
qu, 6.
c Investitura
(above cited)
gloss: et
promiserunt
praestare
debita ssrvitia,
xvi. 6, at the
beginning.
6 On above
cited qu, 6
f Tractatus
Feudorum,
Fourth main
div., qu, i to
qu. 13-
* Above cited
gloss, et
promiserunt,
etc.
* On Feuds I.
v.L
1 Dzg. Ill, v. 20,
2.
it was counted as all one whether the vassal leaves the lord dead or at
the point of death,)
For the crime of desertion a vassal is punished with such rigour 5
that even if his withdrawal in no wise injured the lord, he none the less
forfeits his fief. And the reason for the rule is obvious; for since
desertion is a crime deserving of punishment, recourse to it establishes 1
guilt, and nothing more needs to be said. For, in the case of a soldier, on
other grounds too, it is a serious crime to desert the battle-line, and at
times the punishment is death. a
According^ there is doubt regarding the statement of Baldus* to 6
the effect that if the lord dies as a result of poor treatment or the neglect
or ignorance of the surgeon, the vassal who deserted is not punished in
full, but in proportion. For I think it more logical that he be held
responsible in full, inasmuch as he defaulted in full.
Possibly the punishment might be lightened in cases where the 7
lord was really mortally wounded, and the vassal withdrew without
ascertaining this. For he would be excused on the principle that fact
takes precedence over mistaken impression; so Jacobinus de Sancto-
Georgio. Yet in strict justice the reverse might be said, because, so
far as the intent of the vassal is concerned, his flight was motivated
solely by fear and lack of zeal, which in a soldier are crimes. d And it is
not a question of the lord's welfare, but of the intent in the vassal's
mind just as was said in cases where the desertion worked no injury
to the lord. SoBaldus. 6 (And almost all these questions are considered
by Curtius/ who in regard to many of them reaches a different con-
clusion than I shall here set down. It will be for the reader to deter-
mine what to accept.)
Again Jacobinus* says that when a war is unjust and the fact is well 8
established, a vassal may without guilt desert his lord. But I regard
such action as tantamount to betrayal if taken not through fear, but
in cold blood,
And the glossator and the Doctors cited 11 by Jacobinus are not 9
speaking of a vassal who has deserted in battle, but in war cases that
are far different. For the laws do not say that a vassal who deserts his
lord in war should lose his fief, but rather if he deserts in battle, that is,
in the heat of the strife and conflict. For, in the case of a war, other
assistance can be secured, and the desertion may affect the lord little or
not at all; but in battle the situation admits of no delay, since there it is
a question of [34'] 'touch and go'. 2 (If it be properly introduced here,
there is support for this view in a passage in Digest XLIX. xvi. 5, I.)
And though it is permissible not to become involved in the quarrels
of others, especially when a person is not so obligated, still, after under-
taking to help, it is not right to default. 1 In fact, even in a war I think
1 [For consumatum read consummatum. TR.] * [For permdo read per modo.TR.]
Chap. V]
and Warfare
73
weight should be given to the criterion suggested by Baldus,* namely
whether desertion would affect the lord's interests or not (e.g. if, trust-
ing to this support, he has provided for no other).
And if in the case of a partner an unseasonable dissolution and sun-
10 dering of partnership is not allowable,* how much less so in the case of a
vassal ? (There is point, too, in what I shall say below on the subject of the
deserter. ) And I do not think that the vassal will be excused on account
of the injustice of his lord's cause, particularly if he were in a position
to know of this from the start for, possibly, he might be in some
degree excused, if injustice became manifest in the light of subsequent
developments (see Code, III. i, 14, 4). But understand this with a
reservation in favour of what has been said above under a previous head,
lest we fall into conflict in view of what is there stated.
But in cases where a vassal can in no way secure the safety of the
11 lord by remaining, it is right for him to think of his own safety and to
look out for himself. For flight is not always a disgrace, according to
the remark of Demosthenes : d 'He who fights and runs away will live
to fight another day'. For although the man who begins a retreat is
punished by death, according to Digest, XLIX. xvi. 5, I, still the
situation is far different in the case of a man who looks out for his own
safety only after all is lost.
a On chap, i,
above cited.
* Dig. XVII. ii.
14,
PL VIII,
chap, i, no. 27,
* [See Gellius,
XVII.xxi.3i].
CHAPTER VI
AT WHOSE EXPENSE VASSALS SERVE THEIR LORD IN WAR
SYNOPSIS
I Whether a vassal should aid his lord at
his own expense. See also the following
chapter, no. 10, Quod vero.
^ Vassals must at their own expense accom-
pany the Emperor to coronation.
3 If not, they should send a proper repre-
sentative;
4 Otherwise they must surrender half the
revenue of the fief for a year.
5 The representative must be equally
acceptable.
i JACOBINUS raises also the question at whose expense a vassal should
follow his lord at his own, or at another's. 1 And his opinion is that in
case there is an agreement covering this point, it should be observed.
Otherwise: (i) the fief [35] is able to bear the expense, or the war is
within the territory, and then the vassal will serve at his own expense;
or (2) the fief is poor, or there is need to journey outside the territory,
and then it will be at the lord's expense. This was the view of Alvarotto
also. g
z But when the Emperor goes to Rome to take the crown and the
1569.64 L
e Above cited
servitia.
f Ibid., qu. 2.
* On Feuds II.
VII. i, col. 7.
74
A Treatise on Military Matters
[Part II
xl, 2 ; and II.
M3-
b Feuds, II. Iv,
3-
Rid.
d Gloss, above
cited: et
promiserunt)
&c., qu. 22, 23,
and 24.
e JWrf., qu. 24,
barons accompany him, then it is specifically required that they come
in person, or send a representative acceptable to the sovereign, or 3
surrender one-half a year's income from the fief ; a and it will be left 4
to the baron's option which of the above-mentioned services he shall
elect to perform. 11 And, speaking of a representative acceptable to the 5
lord, the standard should be the judgement of an honourable man, as
Baldus there declares. The representative, therefore, must be equal in
intelligence and in retainers to the person sending him, as we gather
also from the remarks of Jacobinus. d
The last named writer enumerates 6 sixteen cases in which a vassal
escapes blame, even though he does not pay the service due to his lord.
These may be found in the citation given.
CHAPTER VII
WHETHER A LORD MAY IMPOSE A WAR-TAX ON HIS SUBJECTS
SYNOPSIS
1 When subjects may have a war-tax
levied upon them.
2 His own income and imposts should
suffice a lord.
3 A lord is justified in taxing subjects
under stress of urgent necessity.
4 A lord taxes the subjects of his vassals
under stress of urgent necessity.
5 Exception; if they are taxed in addition
by their immediate lords.
6 Subjects will serve their lords with
person and substance in case of need.
7 Rulers should not make war with loss to
their subjects.
8 A ruler should exhaust his own treasury
before touching the purse of his sub-
jects.
9 A ruler should tax all justly and in due
proportion.
10 When delay is perilous, money is seized
where most available. But later there
should be fair readjustment,
n In case of conflicting claims, to which
of many confederates is an ally most
bound to give his help ?
12 Aggression not the same as defence.
13 It is more righteous 1 to help in defence
than in aggression.
14 A ruler should not spare his own treasury
by taxing his people.
1 5 A ruler who squanders his money ma/ not
lawfully make forced collection from his
subjects, even when there is dire need.
1 6 Contribution to the extent of need; but
not a whit farther.
[35'j 17 Discretion of the soldiers.
1 8 A ruler may not impoverish the subjects
of others to meet his own need, even
though he is strong enough to enforce
the demand.
THE question may also be raised whether a ruler, to meet the i
expenses of war, may burden subjects and peoples with special 2 taxes
and other unusual exactions. As for vassals, the answer has already 2
been given above. And in the case of the rank and file, it is required
only that they support the lord with tribute and other customary
1 [Eguiits>\ ,e, Aeqittus.T**] * [For super indictis read superindictis. r n.]
Chap, VII]
and Warfare
returns, without further exactions touching personal service or posses-
sions.
3 ^ ^ However, such emergency might arise that the lord would be
justified in imposing additional taxes also. So declared Panormitanus 8
4 and Jacobinus, b the latter of whom adds that the lord may tax even the
subjects of vassals, when there is very pressing need, appending,
5 however, the qualification: unless such subjects are taxed in addition
by their immediate lords. For in that case they should not be weighed
down with a double 1 load. But this principle is little observed.
6 Baldus d also declares that, in the case of a just war, subjects are
bound to aid the lord with person and property, but only in time of
stress, and with the reservation that they may serve in the person of an
equal substitute, For, says he, to serve in the army is a public and a
necessary duty, when the cause is just as much so as supplying the
means of transportation and other things; in fact, if the lord needs the
actual personal presence of the subject, he will be able to conscript
him specifically and absolutely; 6 but if he does not need the subject in
person, it suffices that a substitute be sent.
7 Guy de la Pape 1 says also that a ruler ought not to make war with
8 loss to his subjects, but that he should first pay out his own money;
after so doing, however, he may draw upon the subjects for assistance.
9 He cites Cino, g who so states, adding that in such a case a ruler should
10 tax not merely one state or province, but rather all, unless there be
need of such haste that delay would be dangerous. For under these
circumstances it is permissible to take funds where they are most
available, even from the treasure of the church but with the under-
standing that there be later a fro rata adjustment of the tax, with
repayment of funds collected. Thus Cino.
That [36 2 ] subjects are bound to serve the lord in person and with
goods was stated categorically and without qualification by Martinus
Laudensis ;* but he handles the subject in a very perfunctory fashion.
As for my statement above that a vassal serves his lord at the
expense of the latter, understand that this does not apply in cases
where by agreement or compact a person is under obligation to serve
to the extent, let us say, of supplying a horseman or foot-soldier in
war. For this surely 3 he will do at his own expense. So Baldus held. 1
Again, a question already treated above (namely, to which of
many lords a vassal should render service) has a bearing on the following
problem: When many states or rulers have entered into friendship
and alliance on such terms that they are bound to help one another in
war, if hostilities are begun by two of them simultaneously and the
allies cannot help both, to which shall they give the preference ?
ii
* On Decretals
II. xxiv. 29,
b Gloss \el
promisemnt,
&c., qu. 18;
Howagiis, no.
36, words sed
hie cadit alia,
dubitatio.
Ibid., words e
adidquoddixi.
d Constlia, L
483, qu. 3.
e ML, doubt,
1 Decisiones,
113, at end.
*OnCodel.ii.
n.
*De Bella, qu.
41.
* ConsiKa, V.
407 (Super
facto domini
Cortonen,),
col. i, toward
end.
1 [Tor dupUd read duplid. ED.]
3 [For in dubio read indttbie. Tfc.]
2 [For p. 35 read p. 36. ED.]
76
A Treatise on Military Matters
[Part II
a On Dig.
XXIX. v. 3,
c In Addit, to
Durandusi on
tit.DeTreuga
et Pace, at very
end.
d Consilium
47-
*Ibid.
458 (Latafuit
sententia) ; so
also V, 406.
Angelus* says that in such a case there will be room to show favour,
with due regard, however, for the nature of the terms of the compact.
This too was the view of Albericus,* and he also finds an analogy in the
case of the vassal of several lords. But Giovanni d' Andrea declares that
service will be rendered to the one who has the stronger claim. On
this see also Romanus . d
In the case under his consideration I think that Romanus rendered
the right decision; for the count in question had entered into agree-
ment with the King of France earlier than with the King of England.
But in the case of a compact between many states or rulers made at one
time I do not see which could be said to have the stronger claim, unless
perhaps it be the party on whom war was first declared or who first
called for help. If, however, compacts were made at different times,
the party prior in time has also priority in claim, as Romanus 6 says.
Moreover, in close relation with this subject, Baldus at another 12
point made the statement that to attack is one thing and to be attacked
is another, assuming on this basis that exempt persons (who do not
contribute even in the matter of war burdens) will nevertheless be
subject to assessment, if a dangerous war arises. But this he says is to
be understood to apply in case a ruler or state is attacked, and not in
case of aggression (i.e. when a war is defensive and not offensive), on 13
the assumption that in offensive warfare some blame attaches to a
state which began a war without appraisal of its own resources.
(This principle could be applied to the preceding case, making it the
better course for an ally to help a party attacked than a party attacking.)
SoBaldus. f
Therefore, 1 though the resources of subjects are a sort of insurance 14
and last resort for a ruler at war, he should beware 2 of spoiling and
impoverishing the provincials, while sparing his own treasury. For in
God he will find an avenger, Who, on examining the assets of the
treasury, will arrive at the truth more readily and surely than the
unfortunate subjects themselves could do.
Rulers should also beware of squandering their wealth. [36'] For 15
in such case they will not be blameless, if they have recourse to the funds
of others as the sage puts it : Those who consume their own, &c.'
For emergency affords them no excuse, if emergency overtakes culpable
carelessness.
Furthermore, rulers should have a care not to tax beyond bare 16
necessity; for if they need ten and take twenty, their action is in-
excusable. And they should not allow their soldiers to burden the
provincials, even when funds are lacking for the pay-roll at any
rate, they should not give the soldiers a free hand, as is always the case
in living c at discretion', as they falsely term it.
1 [Cf.no. 7 if., above. TR.] * [For caueant read caveat. ED,]
Chap. VII]
and Warfare
77
[17] For it would be a case of 'discretion' if they behaved toward their
unfortunate hosts as they would in their own homes, or even as they
do when living at their own expense. But when they call for dainty
fare and even money to boot, neither the soldiers nor the captains nor
the commanders and kings themselves (who know of these practices
and wink at them) are blameless in the sight of God; and He does not
long allow 'the rod of the wicked to rest upon the lot of the righteous.**
18 And far less should lords or even kings be allowed to oppress outside
peoples who are not even indirectly their subjects. For of such it is
required only that they give the lord the benefit of their lands and
resources, when matters have progressed to a point where he must
claim such help and this too without treating these provincials either
as his own subjects or yet as slaves, misusing their substance and their
persons to the point of rapine as we have seen done everywhere in our
home districts of Piedmont, Asti, and Montferrat, and throughout all
Liguria regions that have been pillaged by the rank and file (and, I
am ashamed to say, by their captains and generals also) without any
scruple or pity. This not even the Turks do, when they are at war.
cxxv. 3.]
[37]
CHAPTER VIII
ON DECLARING WAR
SYNOPSIS
1 War should be declared only after long
consideration.
2 War must be declared before beginning
hostilities.
3 Fetiales and their code.
4 Spurius Postumius was surrendered to
the Samnites.
5 Mancinus was surrendered to the Numi-
dians.
6 To begin hostilities without warning is
tantamount to treachery.
7 Whether a person surrendered to the
enemy is still a citizen.
8 How long a time should intervene be-
tween proclamation and war.
AFTER long preliminaries we have now come to the matter of
i declaring war, with a hint, as it were, that a person who is contemplat-
ing and planning war should think long, and ponder well, and have
extended experience in warfare. For this is a business well characterized
by the familiar word of the poet: b
Easy the downward way;
But again to turn, and reach the realms of light
Ah, this the labour and the toil!
Would that kings would ponder well their own anxieties, the losses
and destruction of their subjects, and the doubtful issues of war! For
'[Virgil,
AenadVt.
126 fL]
A Treatise on Military Matters
[Part II
* [Virgil,
AeneidX.
159 &]
very often wars that seem easy at the start issue in results that are most
troublesome. Hence the famous poet a with good reason says of Aeneas :
Here great Aeneas sat; and in his heart he weighs
The issues wide of war.
Surely, if they were wise, kings would make haste slowly in such matters.
As for me, with my poor wit, when I review this subject and note
how readily, how lightly and pardon the phrase how rashly wars are
often renewed in these unhappy days of ours, I am easily led to believe
that, with concurrent visitation of divine judgement, the crimes of
both people and rulers steal away the sense of the latter, so that,
without a thought of peace for themselves or for others, they plunge
into so wide and open a gulf, whence they can scarce escape to safety
except through the aid of Heaven. But to return now to the subject
of discussion.
When, therefore, it has been decided to enforce one's right by
arms, hostilities must not be begun before a declaration of war. Thus, 2
Homer writes that, before undertaking that long-continued struggle,
the Greeks sent the princes Menelaos and Ulysses to Troy to demand
the restoration of Helen.
Such were the functions of the Roman fetides, whose code was 3
called 'fetial'. According to this code, says Cicero, b there can be no just
war unless preceded by a demand for restitution, or unless it has
been previously proclaimed and declared.
The procedure for demanding restitution and for declaring war is
described by Livy, who states that, during the reign of King Tullus,
the latter sent envoys to Alba to demand restitution of captured
property; also that there is no record of any older covenant. 1 And
* [Lxxxii.5.] later he adds d that Ancus, the successor of Tullus, followed this same
procedure; also that the ceremonial was borrowed from the ancient
people called Aequicoli.
And lest we suppose that only the Romans employed the fetial
code, Livy elsewhere indicates that the Samnites used the same, 6
recording that they not merely surrendered to the Romans property
that had been carried ofi, but also delivered up a leader of their own
nation, who had violated a truce. 2
And in their turn the Romans, too, through the fetiales [37']
surrendered to these same Samnites the person of Spurius Postumius, 4
who had authorized the notorious Caudine peace, It is my pleasure
to quote Postumius' own words: 'Stripped and bound, let us be
surrendered by the fetiales ,' said he. 'Let us free our people from
*>[0n Duties, I.
xi. 36-]
I [xxii. 4.]
xxxix. 12 ft.]
1 [i,e. than the one made by the fetiales for the settlement of this difficulty between Rome and Alba.
SeeLivy,I.xv.4. TR.]
2 [induciaru, i.e. indttiiarum. TR-1
Chap. VIII]
and Warfare
79
b [IX.x,9,]
c [Cicero, On
Duties, ILL
109.]
vi.4.
8 So again On
Code 111.
xxxiv, 2, no.
20; on the
Authentica,
following Cafe,
L iii. 2 (Item
obligation, if we have bound them by any, so that in the sight of gods
and of men there be no bar to a just renewal 1 of the war.' a a px. vi. 6.]
And it will not be out of place to record the formula of this
surrender as made by \htf etudes \ 'Inasmuch as these men', said they,
'without authorization of the Roman people, Quirite citizens, have
covenanted that a treaty will be made, and 2 in so doing have com-
mitted a wrong : therefore, in order to clear the Roman people of blame,
5 1 surrender to you the persons of these men.' b And again, in a later
age, the Romans on like grounds surrendered Mancinus to the people
of Numantia. c
6 Consequently, Baldus declared* with reason that it is a sort of
treachery to begin hostilities without declaration of war 6 a statement
already made at an earlier time by Giovanni d j Andrea. 1
But what I have said of Postumius and Mancinus does not bear
upon the matter of dedaration of war. For these men entered into
a peace pact on their own responsibility, unauthorized by the people.
And so they were surrendered to the enemy, to be disposed of as the
latter saw fit, lest otherwise the Roman people be charged with
injustice on the ground that, while rejecting the pact, they still
sheltered the sponsors of the same.
7 And out of this a question arises: inasmuch as the enemy refused
to receive either of these men, did they retain their Roman citizenship ?
And my opinion is that they did not. For they suffered the extreme
loss of civil rights, which includes the forfeit of citizenship and liberty ; B
and a state has ceased to hold as its own, or as its citizen, a man whom
it has repudiated and expelled, even though the enemy have refused
to receive him,*
Alciati, 1 however, took the opposite view, citing Cicero in the
Topics? and the question is variously argued by Brutus and Scaevola.
However, Modestinus^held that if such persons are not received by their
people when they return, they do not regain their citizenship. This is XLIX/XV, 4.
said also in Digest, L. vii. 18, at the end; and I am surprised that Alciati
failed to note or disregarded this in the passage above cited.
8 We might ask also : What interval of time should elapse between
declaring war and the actual beginning of hostilities ? To confess the
truth frankly, nowhere in the histories have I discovered or 3 noted that
there is a fixed period. But simple 4 common sense declares that it is
right that some lapse of time intervene, in which a person may prepare
himself and get ready for defence. For scarcely would a man. be
excused from the charge of deceit and treachery, who declared war
and almost simultaneously made an attack.
This viewissupported[38]byapassageinD^^XLIILmv.5, i :
1 r&atfWBSubstitutedfor&fitfegroQftheoripnal. TR.] z [For usque read atytt*. TR.]
* [For ant read awf.-ED.] 4 [For ipsam read f^a.-TR.)
Feuds, Lib. I.
v. i, near the
beginning, no.
16.
*OnSext,V.
iv. i.
* Dig. IV. v. n.
ii. i, 4.
i?ar
xiii.
ft Dedsiones,
191, beginning
Eos qui de
cetero.
8o
A Treatise on Military Matters
[Part II
( e nor so to crowd his adversary that he cannot appear on time to
oppose'). Moreover, I think the occasion for war should be taken into
account also. For a man who has given ground for declaring war against
himself should hold himself ready, especially if the occasion is recent,
serious, or inexcusable.
I find, again, that Guy de la Pape a records verbatim an, imperial
constitution on this subject, which should be examined without fail
by those concerned with such matters, and on which he adds a com-
mentary and interpretation. Among other things, it is stated therein
that an interval of three days is required.
* On Reprisals,
qu. 4, under
3d main qu.
See Dip.
XXVIII, vi,
28 ; and
XLIX. xv. 10
(at the begin-
ning) and ii.
d [LivyV.
xxvii.j
CHAPTER IX
WHETHER ANY PERSONS ARE PROTECTED AND IMMUNE FROM THE ILLS
OF WAR
SYNOPSIS
1 Women are not exempt from the rigours
of war.
2 The same is true of boys.
3 Boys should not be made prisoners.
4 In warfare among Christians, priests and
others of the clergy are secure from 1 the
enemy.
5 Foreigners are immune from enslave-
ment.
6 Merchants also are immune.
7 Farmers and their stock are secure from
the enemy.
8 Privilege is lost through abuse.
9 The laws get no hearing amid the clash
of arms.
10 Envoys of the enemy are immune in 2
war,
11 Envoys who are planning some hostile
act are not immune.
INASMUCH as there are rules for warfare as well as for peace, we ask
first: When once war is declared, may it be pressed indiscriminately
against all persons, regardless of rank, sex, age, or calling?
And for the carrying away of women into captivity, there is
proof in Code, VIII. 1. 1, which Bartolus* cites on this point. There is x
further evidence also in Code, VIII. 1. 7, 8, 13, 14, and 1 6, and in
Digest. XLIX. xv. 6, 8, and 9. And even to-day this practice persists
in our dealings with enemies between whom and [38'] ourselves the
ancient laws are still in force e.g. the Turks and the Moors.
Nor are boys immune. Though Camillus set a rare and praise-
worthy example in sparing certain lads; d for when a school-masters
had treacherously brought into his camp the highest-born children
of the Faliscans, whom he was besieging, Camillus said: 'We have
no man-made alliance with the Faliscans; but the bond which nature
has created holds, and will hold; and there are rules of warfare as well
as of peace. We do not bear arms against this tender age, which is
1 [Supplying ab, in accordance with the construction used in nos, 5, 7, and 10 below, and in the
chapter heading, ED.] z [For a a read a. ED.]
Chap. IX]
and Warfare
81
10
spared even in the capture of cities, but against armed men.' So spoke
Camillus. With, how much greater justice and propriety, therefore,
would innocent boys be spared in the wars which Christians wage with
one another ! I warn them, however, to keep clear of the grasping hands
of the soldiery, in view of the extreme greediness of the latter, the
greater part of whom care for nothing but money,
j Moreover, the canon law commands the sparing of priests, hermits,
J monks, pilgrims, traders, and farmers, with their stock.* However,
Panormitanus* here remarks that this rule is little observed which in
these days of ours is obvious enough. Therefore, there is point in his
appended statement that these regulations have been nullified by
contrary practice but with a reservation, for which consult him.
However, I should not think that they have been nullified so far
as religious persons are concerned (i.e. priests, hermits, and the like),
personal violence to these being forbidden under the heavy penalty of
anathema; see Decretum> II. xvii. 4. 29, a law which certainly has not
been annulled. Soldiers who fear God will restrain their hands, there-
fore, and leave unmolested the men set apart for the service of God. I
warn also the commanders of soldiers, their judges, and the officers
concerned with the administration of law in the army, that they compel
the soldiers to refrain from this act of sacrilege.
(On the other hand, the clergy should beware of presuming upon
8 their privilege, and of taking part in the action of war ; for a privilege is
lost by the man who abuses it. Otherwise they will justly fall into
immediate personal peril. Nor may they count upon a choice of court,
since in these rougher surroundings remanding is infrequent; for kings
and commanders of armies in such cases fall back upon the well-known
9 saying of Marius that the sound and the rumour of war prevent the
laws from being heard. d )
Moreover, I do not think that these regulations are obsolete in the
case of bona fide pilgrims, according to Decretum, IL xxiv. 3. 23, on
which the Archdeacon comments to the effect that such persons are
under the protection of the church and within its jurisdiction, and that
it is the business of the church to protect them from any injury. For
this he cites Decretum, I. xxxvii. 2.
Again, envoys of the enemy are immune. According to a gloss
[39] this is assumed to have been a tacit agreement between com-
manders. But it is more likely that the practice is based on the law of
nations/ which in early times was so scrupulously observed that when
ambassadors from Tarquin came to Rome, after his expulsion, to
recover his possessions, and they were plotting secretly with the young
nobles to restore him to the throne, and the thing was detected, although
they appeared to have deserved to be classed as enemies, yet, says Livy, g
the law of nations was adhered to.
* Deer elds,
I. xxxiv. 2.
b On Decretals,
I. xxxiv. 2.
Ixxiv. 7 ; and
Ml. XV. i, 4 8,
with the com-
mon nJes.
[VaUfax.,V.
ii. Sjandcf.
Cic., For Mih,
ir> Silent cmm
leges inter
arma.]
On Dig. IL
xiv. 5.
* Decretutn,l.L
gjandZHg. L.
vii. 18.
1569.64
* Code, IV.
XXXV. 21.
bV[xxxv,4ff,].
1 [xiv. i ff.].
82
A Treatise on Military Matters
[Part II
On the basis of such precedent, however, I should not think that n
envoys to-day would be immune, if they attempted such a thing; for
they ought not to overstep the bounds of their commission. 1 And for
such action the Romans suffered severely at the hands of the Senones,
a Gallic people. For when the latter had attacked Clusium, the Romans
sent ambassadors to urge them not to harass the people of that city,
who were their allies. The Senones, noticing that these ambassadors,
after executing their commission, were actively engaged in battle on
the side of the Clusinians and giving them aid, sent envoys to Rome to
demand the surrender of the persons of the ambassadors who had
violated the law of nations. Receiving no satisfaction, they left Clusium
and marched straightway upon Rome; and, after the battle at the Allia,
they took the city and wrecked it shamefully, as we read in Livy. b
And from him we learn also that Tatius 1 (who ruled jointly with
King Romulus) was killed by the Laurentines for having allowed
envoys of theirs to be flogged, contrary to the law of nations,
d On Decretals
I. xxxiv, 2.
8 On Decretum
II. xxiv, 3, 25.
* See i Uacca-
and (by impli-
cation) Deere-
turn, II. xxiii.
8. 15, accord-
ing with 7)r*-
CHAPTER X
WHETHER IT IS PERMISSIBLE TO CARRY ON WAR AT ALL TIMES
SYNOPSIS
1 Days on which one must refrain
from warfare.
2 Canonical truce.
3 Truce by agreement.
4 Battle days.
MOREOVER, it is not permissible to wage war and to engage in
hostilities at all times. For Decretals, I. xxxiv. I, excludes certain days, i
namely Thursday, Friday, Saturday, and Sunday. An explanation of
this is there given by Panormitanus, d which originated with the Arch-
deacon, 6 although he is not cited. To these I refer.
War is likewise forbidden on all the days between the advent of our
Lord and the octave of Epiphany, and from Septuagesima to the octave
of Easter. And this is called the canonical or legal truce, to distinguish 2
it [39'] from truces made by agreement between leaders. (But we need 3
give little heed to the canonical truce; for the glossators and doctors
agree that the above law is obsolete.) But though Decretum^ II. xxiii.
8. 15, indicates that fighting is allowable at any time, we must under-
stand with the reservation: 'if necessity compels'. 1
It is no new thing, nor yet an innovation of canon law, that
there should be certain days and times for abstaining from war. For
we read also in Festus that among the ancients the term 'battle days' 4
1 [For Taticum read Tatium.Ev.]
Chap. X]
and Warfare
was used of days on which, without any pre-arranged truce or armistice ?
there must be no fighting just as upon the occasion of public festivals
they abstained from battle. 1
But in our times, which have little regard for things sacred or
profane, no days are exempt from fighting. For even on the holy day
of Easter the forces of Pope Julius 2 II and Ferdinand, King of Spain,
engaged in a fierce contest with the French at Ravenna; and again at
the very sacred time of Easter a terrible battle was fought between the
Spaniards and French near Ceresole, which is a village of Cuneo
Province.
CHAPTER XI
AGAINST WHOM A PROCLAMATION AND DECLARATION OF WAR IS
DIRECTED, AND WHO ARE INCLUDED UNDER IT
SYNOPSIS
1 War need not be declared against pirates.
2 Pirates may be attacked without question
by any one.
3 War may be waged against' all sub-
ordinates of a belligerent, if they aid
him in person or with goods.
4 War is not pressed against a person who
is an enemy by birth but not by resi-
dence.
5 Even though all subjects are counted as
enemies, people who merely live in ter-
ritory seized by an invader do not belong
to that category.
I HAVE already stated that hostilities should not be begun except
after a proclamation or declaration of war, as it is called. But it is
1 customary to make exception in the case of pirates, since they are both
2 technically and in fact already at war; for people whose hand is
against every man should expect a like return from all men, and it
should be permissible for any one to attack them. So Baldus.*
Furthermore, any one may attack persons whom the Pope or the
Emperor has branded as public enemies; for such are wholly outside
the pale of the laws. So say the canonists b and Angelus, c [40] the latter
adding that even persons in private life may assault such outlaws and
to the point of killing them.
3 Next the question arises whether it is permissible, after war is
declared, to press it against all dependants, vassals, and allies of a
belligerent. Antonius de Butrio d answers in the affirmative. So Baldus, 6
and Alexander/ and Angelus de Clavasio 5 though the last named
1 [There is manifest confusion here. Festus (p. 226 M.) reads as follows; Those are called "battle
days" on which it is right to take the offensive against the enemy. For there were certain public festivals
during which it was unlawful to do this/ TR.]
2 [Mij, i.e. MM. ED.]
i ifti, following
CW*,VLii.
18 (Navigia).
i.
c Consilmm 14.
* On Deer ends
II. xiii* 12,
col. 5, words
sed est dubium.
* On Code HI.
xxxiv. 2, last
col. but one,
words et not*
* In aMt to
Bartolus On
Dig. XLDC
xv. 28.
A Treatise on Military Matters
[Part II
Summa, Pt.
Ill, tit, iv, i
(near end) and
5 3, last col,
but one.
t>Pt.X,Chap.
ii, entire first
end.
ConsiUa, III.
96 (Proponitur
qu0d consue-
tude civitalis
Easterns), at
the end.
a At end.
ii. 22.
* On Decretals
I. xxxviii. 2 10.
Consilia,
above cited.
restricts this ruling to subordinates who aid the lord in person or with
goods ; and this accords also with the view of the Archbishop of Florence/
But I do not see how the restriction can hold. For, according to
what has been said above, all subjects, if not in overt act, at any rate
in status and potentiality are at the beck of the lord, if he needs them 4
unless we except former subjects who have transferred their residence
and their fortunes to another locality. These perhaps will not be
subjected to warlike and hostile treatment; just as, in a similar case,
Bartolus says that reprisals will not be made upon such people. See, too,
what I shall say below. b
Moreover, in this connexion one point must by all means 1 be 5
stressed, namely that though it is permissible to despoil and take
captive the subjects of the enemy if, however, the enemy capture
some territory of ours and by force hold it as their own, it will not
be permitted our soldiers for that reason to press the war against the
inhabitants of those communities, or to treat their persons and property
as belonging to the enemy. For they cannot be called combatants,
unless in a passive sense; nor are they guilty of fault or treachery, if
they but keep out of the war and attend to their own affairs. So Baldus.
For although these localities may help the invader in the conduct
of the war, still it is taken for granted that the original intimidation and
force are yet operative; see Digest, L, xvi. 48,* and the remarks of
Bartolus 6 on the basis of this law. Panormitanus f adds that in the case
of a person who has not been restored to original freedom, it is always
presumed that the same intimidation remains. And with truth we
might say of them what Baldus says, 6 according with Azo: 'Eliminate
the power of choice, and every act will lack character/
But the licence and rapacity of the soldiers have been little
affected by this rule in our home district of Piedmont, where the French
occupied many towns and villages of the duke; and yet these were no
less exposed to the plundering and rapacity of the Emperor's soldiers
than if they had belonged to the original French domain. But I think
this was justified.
m TR.]
[For procnr. read procur ED.]
Chap. XII]
and Warfare
CHAPTER XII
WHETHER THINGS CAPTURED BECOME THE PROPERTY OF
THE CAPTORS
SYNOPSIS
1 Things captured in war become the
property of the captors.
2 Lands of the enemy become the property
of the captors, i.e. of the ruler of the
captors.
3 Agrarian laws.
4. Enslavement may be permissible apart
from war.
5 The Indians subdued by the Spanish be-
came lawfully the slaves of the captors.
6 People captured by pirates do not lose
liberty.
7 Slaves (servi) named from being 'spared*
(servare).
8 Captives should not be killed.
*Decretum,I.i.
9;i. Li, 5;
DfcXLLL
5, at end.
c So tie text of
jDzg.XLIX.
xv.5,i.
1 THAT things captured in war belong to the captors is maintained
2 by the laws, a and that too not only things movable or self-moving, but
3 also immovables. 11 Hence arose those agrarian laws, which for a long
time were a cause of dissension among the Romans.
4 And not only in war does enslavement take place, but also apart
from it. For if a person should go among a people with whom his xv.2o,i,
countrymen had no ties of hospitality or friendship, or if any one from
such a place should come amongst us, he would be the slave of the person
seizing him.
5 With good right, therefore, the Spaniards enslaved those Indians
of the West, who live far away from our world, and were unknown to
the Greeks and Romans, but who were discovered in our times through
perilous and bold navigation (under Spanish auspices and the patron-
age of the rulers Ferdinand and Isabella, and later of Charles V,
Emperor and King of this name, but through the agency and
toil of a man of Italy, Christopher Columbus of Genoa) with good
right, I say, the Spaniards enslaved those Indians, as allowed by the
law just cited; 4 unless one were to assume that this law refers to a
foreigner captured as he goes among strangers, and not to foreigners
captured in a strange land. (On this principle, perhaps, the afore-
mentioned rulers, actuated by the Christian spirit, which they cultivate
to a high degree, gave orders that if those peoples accepted the
religion of Christ, they should live in freedom under their own laws.)
6 But persons captured by pirates or brigands will not become
slaves of the captors, nor will they lose liberty or citizenship. 6 The ^ .
difference between brigands and enemies is found set forth in Digest, **' I9 '
XLIX. xv. 24, and L. zvi. 1 1 8 .
7 Beyond a doubt slaves are so called from being 'spared' (strvarf),
For nature herself admonishes us [41] that it is humane to spare a
4 Ibid.
86 A Treatise on Military Matters [Part II
jDfcLv.u captured enemy and not to kill him. a For it is not right to treat a 8
inst. I. iii } 3, p r j soner w ith cruelty or to put him to death; and it is far more merciful
to refuse to receive surrender and to press the fight to a finish.
b [ytofr,xn. And so also we read in Cornelius Tacitus : b when the Romans
xvu 'l were attacking Uspe, 1 a city of the Siraci, 2 and the townspeople offered
ten thousand slaves in surrender, the victors, says he, rejected the offer,
because it would be cruel to butcher surrendered men, and difficult to
guard so large a number, 3 and it was better, therefore, that they
perish under regular fighting conditions. For it is savage and barbarous
to do violence to prisoners.
However, we read that this too has happened at times. For,
VII [xv. 10] according to Livy, the people of Tarquinii made sacrificial victims of
andvii[xix, ^^ ^^j-g^ anc [ seven captured Romans, But their act did not go
unpunished; for after conquering them, the Romans beat with rods
and beheaded three hundred and forty-eight of the captives selected
from a larger number.
The same thing happened to the people of Cluvia; 4 for, being
unable to take by storm a Roman post in the Samnite country, they
reduced it to surrender by starvation, and flogged and put the garrison
to death. But the Romans in turn, capturing their city, put to the
d [Livy, IX. sword all the adults to a man. d
xxxi. i ft] Moreover, in the peerless poet we read of the funeral of Pallas
e [Virgil, conducted in what was then the conventional way: 3
gj. flj ' Behind their backs he tied the hands of those doomed to be sent
An offering to the dead, to feed 5 the flames with victims 3 blood 6 .
And in our wars at times we have seen captives slaughtered a practice
most abominable unless the captives be deserters, a topic on which I
shall have more to say below in its place.
CHAPTER XIII
THE DIFFERENCE BETWEEN ALLIES, SURRENDERED MEN, AND
CAPTIVES
SYNOPSIS
I Who are called allies.
2. Surrendered men.
3 The formula of surrender.
4 Captives so called from 'capture* (capers}.
Now that mention has been made of allies, surrendered men and
captives, it is worth while to consider how these diSer.
1 For vispen read Uspen. ED,] 2 [For Soracorum read Siracorum. ED .]
3 moltitudinem, i.e. muUitudinem.'Ei)]
4 Incorrectly reported by Belli. The incident concerns the Samnites , TR.]
5 Tor sparsuras read sparswus. TR.]
6 i,e. the fire of the funeral pyre was to be sprinkled with the blood of prisoners slain for the
Chap. XIII] and Warfare 87
1 Allies are those who are bound to us by a friendly compact, and
yet are themselves independent whether they have entered the
compact on even terms, [41'] or whether it has been agreed that one
party by courtesy recognize the authority of the other. a a See Dig.
2 Surrendered men, on the other hand, according to Roman law
were in a sort of middle status, not being wholly free, nor yet really
captives or slaves as the very formula of surrender itself declares.
This latter is reported by Livy, b according to whom King Tarquin * i [x
3 questioned the Collatini in these words : 'Have you been sent 1 as envoys
and spokesmen by the Collatine people to surrender yourselves and the
Collatine people? 3 Tea,' answered 2 they. "Is the Collatine people
independent V 3 'It is,' replied they. 'Do you surrender yourselves, the
Collatine people, the city, the fields, the water, the boundaries, the
shrines, equipment, and all things pertaining to gods and men, into
my power 4 and that of the Roman people ?' 'We do/ said they. 'And
I receive them.' So Livy.
However, that surrendered men more nearly approximate the status
of captives than of allies may be gathered from the simple fact that at
times they too were sold lite slaves as could be shown by many passages.
Thus, according to Livy, c when, after the capture of Fidenae, the iv[xxxiv,
populace had surrendered to the Dictator Mamercus, on the following 3 ffl ^
day individual captives were drawn by lot from horseman to centurion, 5
the number bestowed being determined by the valour of the warrior
in question, and the rest were sold at auction.
But more consideration is shown in the case of those who surrender
voluntarily than to those subdued by warlike power and valour,
though both classes pass into the power of the enemy, as is shown also
by the well-known passage in Livy. d For when the Campanians were d vii[xxx,ff.].
begging aid of the Romans against the Samnites, and the Romans
excused themselves on the ground that they could not rightly defend
them against the Samnites, who also were their friends, the envoys
said: 'Since you are unwilling to undertake our defence against
violence and injury, at any rate you will defend what is your own.
Therefore, we surrender the Campanian people, the city of Capua, the
fields, the shrines of the gods, and all that concerns gods 6 and men,
into your power and that of the Roman people, suffering whatever
we shall thereafter suffer as people surrendered to you/ So Livy.
And another passage of his indicates the same thing. For when
Marcus Valerius Corvus had taken Satricum, he sold four thousand
surrendered people. And Livy adds: There are some who say that
this group of captives consisted of slaves; and this is more likely 7
1 [After oratoresqite insert missi TR.] 2 [For inquit read inquiunt. TR.]
3 [For Ubertate read potestate TR,] * [For deditionem read dicionem. TR.]
5 [The text of Livy has been emended to read ab equite ac centurionibus, i,e. 'by the cavalry and the
urions'. TR.] 6 [After Dem insert divina.1&] 7 [verissimile, i.e. verisimile. ED.]
centurions'
a See his
account, VII
[xxvii. 7 ff.]
* Parerga, I.
xiv, xv, and
'OnCodeVJH,
xlvii, 4.
Treatise on Military Matters
[Part II
than that persons who surrendered were sold. a Harsher measures,
therefore, were used with surrendered people according to case and
circumstance.
Any one wishing further information on this head should consult
Alciati, b and a note by Baldus on the title of Code, VII. v, where he also
makes the noteworthy statement that if to-day some state were to give
itself over to another after the fashion of ancient surrender, the victor
might do with it as he wished, but he ought to spare life. This should be
observed with reference to those who now at the present time surrender
at discretion a subject that I shall treat more fully later.
That captives derive their name from 'capture' (cafere), the word 4
itself declares ; and so Baldus stated. Moreover, that they become slaves
is shown by the laws cited at the beginning of the last chapter.
[42]
d II. ii, qu. 40,
[On Duties,
III. 107,]
CHAPTER XIV
THAT FAITH MUST BE KEPT WITH AN ENEMY
SYNOPSIS
1 Faith must be kept with the enemy,
2 Faith need not be kept with brigands,
3 Deceptions that involve no treachery are
allowable.
THE law of nations requires that pledges be not violated, and that i
agreements made even with the enemy be carried out; so Decretum,
II. xxiii. 1.3, which is discussed by St. Thomas. d And Cicero 6 also states
this to be the law of war, declaring that a pledge and oath given to the
enemy must be kept.
(But, says he, if you do not pay money promised for ransom to 2
brigands, no wrong is done, even though you default after taking an
oath; for a pirate is outside the category of legitimate combatants and
the common enemy of every one as I too have already pointed out
above.)
Consequently, everywhere in history the Carthaginians are charged
with perfidy; whereas Fabricius is lauded for justice and honour,
because he scorned having poison given a dangerous enemy. And the
Emperor Ladislaus is criticized, because, after making peace with
Amurath the Turk, he violated it, under the delusion that he was not
bound 1 to keep a pledge not sanctioned by the Pope. This, however,
proved his undoing; for he was beaten in battle and lost his life.
But deceptions which involve no treachery may rightly and 3
properly be employed. They are called 'stratagems', and here applies
1 [For teneretut read teneretw. -ED,]
Chap. XIV] and Warfare
the saying of Leonidas 1 that when the lion's skin was of no use, he put
on the fox skin. So the well-known word of Virgil : a *[Aewid II.
"3QO"!
Prowess or wile, who would ask in a foe:
There is a passage on this topic in Decretum, II, sxiii. 2. 2; and the
histories abound in these stratagems, Moreover, the men who had the
discernment to use them at the proper time are highly commended
and praised. To record them, however, would not further at all our
present purpose.
With wit and arms, then, war should be waged against the enemy
and with wiles too, if they involve no wrong or treachery (for in these
there is no room for valour and glory). But no one should employ
poison against an enemy, be he ever so aggressive and dangerous, even
though a deserter or traitor offers such help a decision that was
approved in the case of Fabricius, as I have already said. How much
less, therefore, should such assistance be solicited or bought! Yet,
there are to-day people who regard this road to victory as the shortest
and most convenient.
CHAPTER XV
WHETHER THE COMMANDER HIMSELF MAY ENGAGE IN SINGLE
COMBAT
SYNOPSIS
1 Romulus fought in single combat with
Tatius, King of the Sabines.
2 Alexander fought in single combat.
3 Whether it is permissible for a com-
mander to engage in single combat.
4 Dominion must not be staked on single
combat.
5 Charles of Anjou made an agreement to
fight with Peter of Aragon to determine
to which of the two the kingdom of
Naples should fall.
6 Default that disqualifies; at the start, or
at the finish ?
THE question is raised whether it is permissible for a general, a
prince, or even for the king himself to engage in single combat with the
opposing king, or to covenant that 2 dominion shafl pass to the victor,
! Some authorities approve the practice, citing the fight of Romulus
with Tatius, King of the Sabines. Such, too, was the fight of Alexander
of Macedon with Porus, King of India. And the chief of poets writes
that Aeneas and Turnus fought thus for Lavinia.
i [The remark is ascribed to Lysander by Plutarch, Apophthegmia Laconica, Lysander, iii.-TR .]
z [For a* read wf. TR.]
1569.64 N
9 o
A Treatise on Military Matters
[Part II
191, beginning
Nullo modo.
ton, VII, ii, iii,
andiv.
Consiliutn
212 (Promitto
UK).
d Consilia, 300,
cols, i and 2 ;
225, col. 3 ;
236, last col.
but one, no.
1 6 j and 655.
Feuds, HM
andlv.
* See the canon-
ists on
Decretals I.
xxxiii. 13;
Innocent on
Decretals IL
xxvi. 15;
Panormitanus
on Decretals
II, i, 16, col. 7,
and on
Decretals II.
viii. 4, col. 6.
Oldradus a discusses the matter, saying that this practice is a grave 3
wrong, because it entices to sin and to strife, and because God is tried,
in that the issue is risked on a chance a thing which ought not to
be. The same question is taken up by Paris de Puteo,* who seems to be
wavering and self-contradictory. For in chapters ii and iv he decides
that the practice is not allowable, whereas in chapter iii he says that a
king may challenge the Emperor, (What point is there in a challenge, if
fighting is prohibited ?)
My own view is that it is altogether improper, either for kings, or 4
even for the Emperor ; and this I hold both on the basis of the argument
of Oldradus, and in view of the fact that there are definite methods
established by law and custom for conferring dominion (for example,
by election, as in the case of the King of the Romans; or by succession, as
in the case of other kings), methods which the sovereign himself has no
power to set aside or annul. (Just so, in a similar case, Bartolus said
that there is a definite procedure established by law for surrendering an
inheritance, apart from which procedure a surrender is not effected, even
though an agreement to that effect has been made and acted upon. He is
followed by Decio, d and comes back to the same point in Consilium 72.)
Furthermore, I hold this view because the practice would be
unfair to sons and others to whom dominion comes by succession;
for [43] the sovereign cannot set aside such rights, according to the
feudal law 1 and practice even in the case of minor fiefs. 6 Again, it
concerns the subjects not to be brought under the rule of a new and
strange lord (whence it is said that a king may not transfer a state to
another ruler against the will of that state 1 ).
But I should judge otherwise in case the authorization and consent
of an overlord were granted (supposing the rulers to have an over-
lord), and the populace was little affected. Thus, in the time of our
ancestors, when Charles of Anjou, Count of Provence, and Peter 5
of Aragon were claimants for the Kingdom of Naples and Sicily, with
the consent of Martin IV, 2 Pope of that name, it was agreed that
each sovereign, accompanied by a hundred of his knights, should engage
in combat, and that dominion should rest with the victor. The battle
was to be fought near the city of Bordeaux, 3 which was then under the
rule of the King of England.
On the appointed day bright and early Charles appeared at the
place with his hundred companions in arms; and, after waiting for his
opponent up to the twenty-second hour, he withdrew, Promptly at that
time Peter came upon the scene, and, finding no opponent, declared
that it was no fault of his that the battle did not begin. And long [6]
thereafter there was a dispute as to which defaulted he who had come
J [For statmut read staluunt. ED.]
3 For Burdegalensi read Bwdigalensi. ED,]
! [For Martini ,v. read Martini V.
Chap. XV] and Warfare 9 1
at break of day, but did not wait, or he who had put in an appearance
at the last moment with implication that default at the end was more
serious than at the start. However, the verdict of the outcome was
otherwise; for the afore-mentioned rulers appealed again to arms, with
unhappy issue at length for Peter.
CHAPTER XVI
WHETHER A CAPTURED GENERAL OF THE ENEMY SHOULD BE SPARED
SYNOPSIS
I Whether a captured military commander
should be spared.
2 A dead man makes no war.
3 The head of Conradin was cut off.
MY remark above that captured persons should not be dealt with
harshly, together with the reference above to King Charles, recalls to
1 my mind another question, namely whether mercy should be shown to
the leader of the enemy himself, if he chances to be taken. There is a
passage in support of the affirmative [43'] in Demtem, II. xxiii. I. 3
particularly if this leader be a man in regard to whom no breach of the
peace is apprehended, as the statement there runs.
In comment on that passage, the Archdeacon explains the word
maxims as 'only', assuming that a captured leader is to be spared only
in the case where renewal of war is not apprehended according to the
2 common saying: C A man that is dead renews no war.' On the other
hand, if there is danger of renewal of war, it seems to be implied that
it is the safer course to make an end of the man.
, And it is said by Martinus Laudensis,* that on the strength of
this interpretation of the Archdeacon, Charles of Anjou had Conradin
the Swabian decapitated. But Felinus records that when the sentence
was read in the presence of the condemned man, as is the usual practice,
Conradin turned to the judge and said: 'Vile chattel, vile chattel^ are
you not aware that peer has no jurisdiction over peer? And this is
related by Collenuccio, too, in his history of Naples.
9 2
A Treatise on Military Matters
[Part II
a See i Samuel,
xxvii [2].
xxix[2].
See 2 Samuel,
d i -Swig.?, iii [i].
See i Kings,
*[].
* See r King?,
xv[i8ff,].
* 2 Kings, xvi
[8].
CHAPTER XVII
WHETHER A CHRISTIAN KING SHOULD ENLIST THE SUPPORT OF AN
INFIDEL RULER
SYNOPSIS
1 David took refuge with infidels.
2 Solomon made a marriage alliance with
an infidel.
3 King Asa hired an infidel king for service
against the Hebrew people.
4 Alliance of an orthodox ruler with an
infidel against another infidel is permis-
sible.
5 The Maccabees made alliance with the
Romans,
6 Even Abraham took foreigners with him
into battle.
7 The orthodox at war with one another
should not have recourse to the help of
infidels.
8 Compacts to 'regard friends as friends
and enemies as enemies' should have the
qualification: 'without doing injustice'.
9 An unlawful oath is not to be kept.
SOMETHING also has been said above of compacts made by lords
and rulers. We must ask, then, whether it is permissible for orthodox
and Christian rulers to make alliances even with infidels, and to employ
their aid and support.
And that this is permissible would seem to be proved by the case
of David, that man after God's own heart, who, in his flight before r
Saul, took refuge with the King of Gath, a and returned with the latter
and the other Philistines in their drive against Saul. 13 And David sent
[44] envoys to bear his condolence to Hanun, King of the Ammonites,
on the occasion of the death of his father, because the latter was a
friend who had shown him kindness.
Likewise David's son Solomon made an alliance of friendship and
marriage with the King of Egypt. This we read happened before his 2
sin, and before his building of that most marvellous temple. d And he
also entered into alliance with the King of Tyre. 6
King Asa, too, who is reckoned among the good (and of whom it
is written that he did right in the sight of God, as did David his 3
father), hired the King of Syria to fight against Baasha/ King of Israel.
And it is said 8 also that Ahaz, King of Judah, sent envoys with treasure
to the King of Assyria to hire him to fight in his behalf against the
Kings of Syria and Israel, who had made war upon him.
But I think a distinction should be made according as alliance is
entered into with an infidel against another infidel, or against another 4.
orthodox person. In the first case (e.g. when the Emperor Charles V
entered into alliance with the King of Tunis 1 against Barbarossa, the
pirate chief, who had seized Tunis and invaded that realm; or if at any
1 [Mulei Hassan. ED.]
Chap, XVII]
and Warfare
93
time he assisted 1 with advice or arms the King of the Persians, whom
they call Sofi, against the Turks) I think this action was and is permis-
sible, For what is of more advantage to Christians than that Satan be
divided against himself, and likewise all his members to which category
all Mohammedans belong? For just as for us who are orthodox it is
expedient that we be united and agree (as is said in St. John & whence
also PauP urges us to endeavour to keep the unity of the Spirit in the
bond of peace, and declares that we are all one), so contrariwise it is
desirable that infidels be split up and divided.
5 This view fits with the fact that the Maccabees made alliance with
the Romans; for they did not enter into that league against their own
6 people, but against Antiochus, who was forcing them to idolatry. So
also Abraham took with him Mamre and others of the Amorites who
were his allies, when he rescued his nephew Lot and the people of
Sodom from other kings.*
7 But in the other case, i.e. when there is war between the orthodox,
I think that such alliance and support should be left severely alone.
This is indicated by the same passages above adduced in support of the
contrary view. For the prophet Hanani 2 reproved King Asa for calling
in such aid, saying to him: Thou hast done foolishly, therefore, from
henceforth thou shalt have wars. 36 Moreover, Ahaz was the worst of
kings, and he was not helped by the aid he enlisted in fact he was
despoiled by the very people whose assistance he had solicited. 1
Christian kings, therefore, should take to heart what the prophet
said to the excellent King Jehoshaphat [44']: 'Shouldest thou help the
ungodly, and love them that hate the Lord ? Therefore 3 is wrath upon
thee from before the Lord 3 , &c. g Note too what another prophet said
to King Amaziah: 'Oh king, let not the army of Israel go with thee;
for the Lord is not with it. And if thou thinkest that wars are determined
by the strength of armies, God shall make thee fall; for', said he, 'God
hath power to help and to put to flight. 311
As regards the story of David, who returned with the Philistines
to fight Saul, the caution of the Philistines was not unreasonable in
ordering him to be sent away 1 because of their fear that he might turn
against them when actually on the field of battle. For we could conceive
that he might have so acted, if we were to take into account what^he
did during the time when he was with the above mentioned King
of Gath. 1 For, pretending to raid his own people, he attacked the
Amalekites (who were his enemies, and friends of the king) and other
neighbouring peoples, butchering them all to a man, so that there
might be no survivor to accuse him of treachery and wrong. (We
must admit, however, that his action was justified; for these were all
xvii [21 ft".].
b Epliesians, iv
[3]-
c Gahtians, w
[28].
d See Genesis,
xiv [13 ff.].
c See 2 Chroni-
cles, xvi [9],
* See 2 Chroni-
cles , xxviii
[20 ft].
See 2 Chroni-
cles, xix [2].
j xxv. 7 ff.].
1 [i Samuel,
xxix. 3 ff.].
J See i Samuel,
xxvii [7 ff.].
1 [For iv.it read iuvit. TR.]
3 [For icdrco read iddrco TR.]
[For Hanam read Hatwrn'. ED,
94
A Treatise on Military Matters
[Part II
a De Confedera-
tions Princi-
pum.
* Decretum, II.
xxii. 4. can. 3,
4,5-
[i Samuel,
XXV. 22.]
d Decretum,
ibid., can. 2
and 6; so also,
with comment,
Decretals, V.
xii. 4' } Sext, II.
XL i; Decretals,
II. xxiv. 23
andi6.
* On Dig.
XXIX. v. 3.
*Pt.VI,chap.
i, no. 5, near
middle.
beginnin
Ckristophoriis.
*DePotestateac
excellentia
Regia, qu. 83.
iDeBelk.
iv. i, at end.
enemies of his nation, and they were occupying land granted by God
to the Jews.) .
The other examples belong rather to the first case. This same
problem is considered also by Joannes Lupus, a a Spaniard.
And that question he treats conjointly with another, namely 8
whether leagues and compacts are binding which are made between
Christian rulers (even with the sanction of the Pope), with the provision
that the contracting parties shall hold the friends of all as friends, and
the enemies of all as enemies. And he concludes that these pacts do
not hold, because they encourage wrongdoing especially ^when ^ a
confederate of mine either begins an unjust war, or defends himself in
an evil cause. See there at length.
He might better have said that these pacts do hold, but with the
proviso: 'without doing injustice 5 . For we have seen already that the
occasion for war must be just. And, acting simply on natural reason,
both the orthodox and the pagan are bound to look to, and scrupulously
observe, the claims of justice under the fetial law, which I have 9
described above,
For he who has promised to defend another is not obligated to him
for lawless ends, especially if the injustice is clear and evident; for it is
better in such a case to violate the pact. b Thus David acted far more
justly in disregarding the oath which he had sworn in regard to destroy-
ing NabaP than did Herod, who, on account of his oath, put to death a
very righteous man. d This view is supported by a statement of Angelus 6
to the effect that, in the case of such compacts, even though aid in
general and of all sorts is promised, there is no obligation to wrongdoing.
This will be considered more in detail later. 1
[45] The general question is treated by Oldradus,* who is quoted
verbatim by Corsetti, h both declaring that these pacts are permissible and
lawful. So also said Martinus Laudensis. 1 But all are very barren and
perfunctory, and they are not in accord with the teaching of 2 Chronicles,
xvi and xxviii passages that were overlooked. Albericus 1 discusses the
subject, but with little more fullness, merely agreeing with Oldradus.
Consequently, I do not think that we should call such alliances allow-
able, unless with the reservation above specified.
Chap. XVIII]
and Warfare
95
CHAPTER XVIII
SUPPLEMENT TO THE CHAPTER ABOVE: WHETHER THINGS CAPTURED
BECOME THE PROPERTY OF THE CAPTORS
SYNOPSIS
1 Among Christians, people captured in
war against the Emperor are not en-
slaved,
2 Things captured should be put in the
charge of the head of the army,
3 The commander of the army should
divide the spoils of the enemy in
accordance with the valour of the
soldiers.
4 At times the plunder becomes the
unquestioned property of the captors.
5 Rule for dividing the spoil of the enemy
derived from the Mosaic law.
6 How spoils taken from the enemy are
divided by the Mosaic law.
7 One-tenth of the spoil dedicated to God.
8 Immovables belong to the sovereign;
9 And the general cannot give them away.
10 Soldiers ought not to harm the un-
offending. And if, in passing through,
they injure the provincials, it is right
for the latter to attack them.
11 A man captured in war shares the status
of inanimate things.
12 A Christian may not enslave a captive
taken from among Christian enemies,
xiv.4.
WITH regard to the statement above that things taken in war,
whether animate or inanimate, become the property of the captors,
i Saliceto a declared that to-day Christians are not made slaves of the
captors, going so far as to say that this is true even though the - I2 ' no -7-
Emperor himself has declared the war.
But Bartolus* denies this; and he is followed by Baldus, who says ig^k
that in his time when Count Bergaminus de Martiano died in captivity col< 3 / w ^ds 24 *
after making a will while in that status, there was a great controversy *j%J^
about it, because the claim was made that the Emperor with whom he quo
was at war, had died [45'] before the count in question was captured,
hence the war had come to an end, and therefore it was lawful for the
said count to make a will; whereas if he had been taken before the death
of the Emperor, without question he would have died in a state of
enslavement, and the will would have been invalid.
Baldus, then, here takes two things for granted; first, that by the
death of the Emperor the war which he had declared was brought to a
close; and second, that a man captured in that war would have been
a slave. I have grave doubts on both these points, and I shall have
something to say of both in another passage in this treatise.
In regard to the case of this count, Baldus elsewhere 4 repeats his
verdict, saying that he had heard from elderly advocates that there
was a sharp discussion about the count's estate. And he affirms that
d CWfiI.il
i, col. 8, qu,
14.
A Treatise on Military Matters
[Part II
* Pt, II, chap,
xi.
b Pt,IV,chap.
i, at the begin-
ning.
e On Dig. I.
xvi. 118.
d Decretum, II,
xxiii. 5, 25.
e On Dewetum
I, i. 10, above
cited.
* Same gloss; so
Numbers, xxxi
[26 ff.];
Joshua, viii
[sands/];
Decretum> II,
35x0.5,25,
1, 12, COl. 2.
1 1 Samuel,
xxx [22 ff.].
liii. 36.
[761 ff.].
the man would without question have been the slave of the captors, if
he had been taken while the Emperor was yet alive; but he is uncertain
about the validity of the will, in view of the fact that the count was
captured after the Emperor's death and as was assumed the war had
thus been brought to a close.
With reference to my original statement that people are enslaved
who are captured in a war declared by the Emperor, there is con-
firmation in what I have said above 31 and in what I shall say below. b But
Alciati has attempted to introduce a new heresy to the effect that
among Christians captives are not enslaved, and further that things
captured do not become the property of the captors. And he attacks
the theologians who say otherwise, calling them silly talkers, i.e. mere
wind-bags.
Again, regarding the original statement that things captured 2
become the property of the captors, question might be raised on the
basis of a passage* in which it is said that such things fall to the army
commander. But this should be understood merely with reference to
custody, as a gloss 6 points out or, better, in the sense that later the 3
commander is to divide the spoils among the soldiers in proportion to
the valour and the deserts of each/ But Saliceto 5 makes a distinction
according as the plunder is taken in the enemy's territory without any
battle (and then it belongs to the captors), or in connexion with an 4
engagement.
In the second case, suppose that a part of the soldiers do the fight-
ing, while the rest are in ambush, or stand drawn up in line to act as a
reserve for the troops engaged, or even remain behind to guard the
baggage; then the plunder is turned over to the general, who will
divide it according to the deserts of the soldiers including those
who had no part in the battle.
This squares with the view of Baldus, h who cites the example of
King David. 1 And he also makes the statement 3 that things captured
become the property of the captors; but that they must be turned
over to the general, and divided by him in accordance with the valour
of the soldiers, in such a way that the braver have the better lot, while
the lazy or the cowardly have nothing.
And the logic of this is perfectly sound; for the energetic men are
eager for the strife, and for putting the enemy to flight and for laying
them low, whereas in the meantime the sluggards have an eye to
plunder and spoils. But if all were to look out for [46] plunder and
seek for gain, the battle might perhaps be renewed with heavy loss to
the victors. For in this way victorious armies have not seldom been
routed, and assured success has slipped from their hands.
That the Romans, too, followed this procedure is shown by the
lines of Virgil:* ' y
Chap. XVIII] and Warfare 97
And now in empty halls of Juno's shrine,
The chosen guards, e'en Phoenix and Ulysses dire,
The plunder keep. Here all the wealth of Troy
From flaming temples reft the god's own tables,
Solid golden bowls, and captured vestments
Pile they up,
Generals, therefore, should not countenance this unfairness, 1 nor
take such chance and risk.
5 According to the law of the ancient code we read that the practice
6 was different. For all the things having life were turned over to the
general, who divided them both among those who had gone forth to
battle, and among the others who had remained behind a half to one
party, and the remainder to the others ; but things inanimate were the
property of the captors. So we find in Numbers? for unless you so a xxxi[26ffj.
understand that passage, the last words there 'for what each had seized
in the plunder was his own 3 would conflict with what precedes in that
chapter.
7 And here I note in passing that, according to this code, out of the
plunder one in five hundred of the things having life was set aside as a
first-fruits offering to God, but out of the part which fell to the people
who had not fought, one living thing in fifty was set aside as a tithe for
the priests and Levites.
And not only do we read in the chapter above cited that this was
the practice among the people who worshipped the true God; but
even those who knew not God and worshipped idols often vowed a
tenth of the spoils to Hercules in the hope that, being valiant, he would
aid the valiant. And at times such a vow was made to Apollo, as in the
case of Camillus when he took Veii. So sometimes even to Vulcan. b b
But what little regard our generals have for human or even divine 5 j
regulations, is all too evident. Out of the spoils I have seen hundreds
of pieces of gold given to an actor, and a few dollars to a brave soldier
who had even been crippled in battle with not even a copper for
God Himself or for His ministers, the latter indeed getting off well if
(even in the taking 2 of those cities which have been lost through the
fault of our soldiers and are recovered and retaken by us) any regard
is shown for God and His worship. Little wonder then that He brings
evil destruction upon the wicked, and punishes His enemies at the hand
of their foes! But, as the saying is, Plato forbids us to go into detail.
Jason also, following others, treats this question, namely to what
extent things captured in war become the property of the captors, and
what is the time limit, and how they are apportioned.
8 But immovables belong to the Emperor, according to Digest,
XLIX, xv. 20, i, and Bartolus on Digest, XLIX. xv. 28, where
1 [i.e. of indiscriminate seizure on the part of the soldiers. TR.]
3 [For expugwtionem read expugwtione.'Ex>.]
1569.64
A Treatise on Military Matters
[Part II
Addit,, ibid.
iii. 7, in last
prin.
*Consilia,lI.
358.
e C0tuilia,I,Dt
TreugaetPace,
col. 3, -words
et diat Jnno-
centius.
*OnCode,VlIl.
1,12,
e On [Dig.
XLIX.xv,?]i,
at beginning,
col. i, words
guma.
1 On Dig.
XLVIILii. 7.
5, clause 2
(quaero)*
l On Decretals
III. xlk. 6,
col. 8,
Alexander 81 states that the army head may not distribute these immov-
ables. [46'] This bears on a case of frequent occurrence in our days. For 9
the generals of the French have seized, confiscated, and given outright
to their soldiers the possessions not only of people in the service of the
duke or Emperor, but also of those who hold possessions from them but
reside elsewhere not excepting the clergy and monks. Now, if after
peace is made, those soldiers should be sued for restitution of income,
their case would be weak. For inasmuch as the army head had no right
to make these grants, the soldiers did not acquire title to the income
unless the terms of the peace pact are so generously framed as to protect
them.
And while it is permissible for soldiers to plunder in the enemy's 10
lands, the case is different when an army, marching against the enemy,
passes through the territory of others; for then it should not inflict
loss on the inhabitants : As we read in Numbers :* We shall go by the
king's highway, we shall not turn to the right hand nor to the left,
until we shall have passed by thy 1 borders. We shall not pass through
the fields or through the vineyards ; and if we shall drink of thy water,
we will give what is right, nor cavil about the price.' This is repeated
in Numbers, xxi [22]. Among the jurisconsults, Angelus says the same,
adding that if soldiers inflict losses in passing through, it is permissible
to resist and even to assail them.
On the subject of prisoners, one further idea advanced by Baldus d n
is to be noted, namely that a man taken in war changes from a person
to a thing, and is rated like an ass or some other movable. This means
that such prisoners become slaves of the captors ; and in regard to a war
declared by the Emperor, this was the view of all the early Doctors,
according to Calderinus. 6
Saliceto/ however, declares that this rule is obsolete to-day, and that
enslavement and servitude are replaced by a ransom imposed upon the 12
captive. This view has now gained ground; and it is supported by a
passage in Digest, XLIX. xv. 21. I. I shall treat this point more in
detail later.
Socinus 8 raises the question whether it is permissible to take an
enemy prisoner, if he is found in the territory of a third party, i.e.
outside the boundaries of the belligerents. He presents arguments on
either side, and concludes at length that this is not permissible, citing
Angelus, 11 and rulings in Code, L xii. 5 and 6. There is support, too, in
the statement of Bartolus 1 that a person arrested in another's territory,
even by the officers of a local judge, is not legally arrested and his release
may be demanded a view that Panormitanus 1 reports and accepts.
The opposing view finds support in the fact that it is said that a
proscribed person, who by virtue of the character of the statutes may
1 [For suos read tuos.Tz.]
Chap. XVIII]
and Warfare
99
be killed at will, can be slain outside the territory of those who make
the statutes ; so Baldus. a [47] For in the case of a citizen of Arezzo who
kills his outlawed townsman in the territory of Florence, Baldus says
that the territory of Florence is free and safe for the outlaw with
respect to the Florentines, but not with respect to the people of
Arezzo and the enemies by whom he was disowned. Hence it is the
view of Baldus that the slaying was permissible so far as 1 the parties
themselves were concerned, but not with respect to 2 the Florentines;
and that a judge of theirs might therefore punish the slayer, should he
fall into his hands. So also said Felinus, b
On Code VI. i. 2, c Baldus takes the same ground. For he there says
that a process begun against a person captured in another's territory is
valid, and that execution is equally valid. However, he says, a judge of
the territory in which the arrest was made may punish a local injury.
There is further support in the dictum that wherever a general is
with an army, that is his 'territory'.* Hence also Baldus 6 said that a
general who is in another's territory may yet punish a criminal.
Notwithstanding all this, I think it safer to hold with Angelus and
Socinus that such capture is not permissible. For the above procedure
in the case of a proscribed person is a detail allowed or forbidden in
dealings between individuals and varying with the locality, whereas we
are speaking of what is permissible under the law of nations and of war.
And where there are separate jurisdictions and territories, it is not
right for the commander of an army to allow infraction and disturbance
of the peace of the territory of another, with whom he has no quarrel.
And if enemies cannot be made prisoners in another's territory,
consider on what grounds, when cities are plundered, wretched provin-
cials may be seized in churches which belong not less to another's
territory than do outlying lands (as we note Socinus 1 argues in regard to
them on this same question, citing Code, I. xii. 5 and 6). But whatever
the law may say, the greed of the soldiery and their heathenish irrever-
ence take small account of such immunities. And would that even holy
persons and appurtenances were spared !
What is said above is supported by the view expressed by Joannes
of Imola g to the effect that even where war is justified, it cannot be
pressed against an outsider's subjects who chance to be found in the
enemy's territory, but who do not mix at all in the activity of war;
and a captured enemy cannot be taken to the captors' base by crossing
the territory of a third party. For that ought to be altogether safe
ground even for those in transit. So Imolensis.
1 [For quo ad read quoad. ED.] 2 [For quo ad read quoad. ED.]
*OnCodeI.L
i, col. 7, words
sed hie qiw-
ritur si banni-
tia.
b On Decretals
I. ii. 7, col, 3,
words ociavus
c Words quid
ergo si iudex.
d Bartolus on
Dig. L xvi.
e On Dig. I.
xviii. 3, 2,
words qwerunt
doctom utrum
dux exercitus.
*[OnDi S .
XLIX.xv.?]i,
above cited.
s Consilium
51, beginning:
In casu prae-
[47']
HERE BEGINS
THE THIRD PART OF THE WORK
CHAPTER I
ON RETURN BY POSTLIMINY
SYNOPSIS
1 Postliminy arises from the law of nations.
2 Postliminy defined.
3 Postliminy; to whom it applies.
4 It does not apply to persons who have
surrendered.
5 A free man's wrong-doing is worse than
a slave's.
6 Praescriptio [longi temporis] has nothing
to do with postliminy.
7 Arms have no postliminy,
8 Postliminy of peace and war.
9 Interpretation Q{ Digest, XLIX. xv. 12,
at the beginning.
10 Interpretation of Digest, XLIX. rv. 5,
2, and XLIX. xv. 12, near the be-
ginning.
11 A person apprehended when war is
renewed can be made a captive, even
though he arrived on the ground while
peace yet prevailed.
12 When things captured become the
property of the enemy, and when they
return to their former status.
13 When goods recovered from the enemy
are to be restored to their former
owners.
14 A person born in captivity even of
parents lawfully wedded is not legiti-
mate in the eye of the law:
15 And he does not have the right of post-
liminy:
1 6 And cannot inherit from his father, ex-
cept on the basis of special decrees.
17 A person dying in captivity 1 among the
enemy transmits a heritage from his
father, but not from his mother.
1 8 A son whose father is in captivity among
the enemy may not break up the father's
estate.
19 Acquisition of an inheritance is kept
pending while a person is in captivity
among the enemy:
20 So also if he has been ransomed, but has
not yet reimbursed the ransomer,
21 The heir of a person ransomed is not
bound to reimburse the ransomer.
22 The guarantor of the ransom of a cap-
tive is not liable for the amount, if the
man dies meanwhile.
23 The sale of property belonging to the
enemy is not valid.
24 The sale of things seized by the enemy
is valid.
25 When a pupillary testament is valid
in case the father becomes a slave of
the enemy. And what if the son is
captured ?
26 Interpretation of Digest, XLIX. xv. II,
27 The enemy, too, have postliminy, even
with respect to things which they have
taken from us.
28 If things taken by the enemy and re-
covered are again taken by them, do
these things revert to the earlier
status ?
1 [48] POSTLIMINY rests upon the same law as do war, captivity, and
2 enslavement. 4 It consists in the right of recovery of something in the
possession of the enemy.* However, this right does not pertain to all
persons or to all things lost in war, but only to those singled out by law
or by custom.
3 As for human beings, it applies normally to all such to slaves as
9-
b Dig. XLIX.
xv. 19, at the
beginning.
: [See, however, what is said in the text under this number. TR.]
103
104
A Treatise on Military Matters
[Part III
Dig, XLIX.
xv. 19, at the
end.
.
XLIX. xv, 17.
t
xlvii. 7, last
col.
xv.
.
. ig, 6.
*OnCodeI.i.
4-
Dz>. XLIX.
xv. 20.
s See Dig.
XLIX. xv. 12,
'
and 12, i,
10, 12, and 15;
at end; so
Cafe, TOLL
*Dfc, XLIX.
xv. 26.
?., 20, I.
H. xvi, 3, 13,
at end.
well as to free men, a but not to persons who have surrendered to the 4
enemy: so vital is the distinction between being taken by force, and
surrendering voluntarily through fear. b Hence Baldus notes that
soldiers should beware of surrendering, because they thus lose the
right of postliminy, which is a deep disgrace for them. But this dis-
grace, says he, even then was little regarded,
In the second place, exception is made in the case of deserters. 4 How-
ever, if the man is a slave, there is the further qualification that his
desertion and wrong-doing do not impair his master's right over him
if he is recovered. And in this particular the position of a master 5
will be found more favourable than that of a father. For the latter does
not again receive under the f atria potestas a deserting son who is
recovered.
Unless I mistake, the reason is that the son is penalized because,
though a free man, he has scorned his country and stooped to such
crime and disgrace (for military discipline among the Romans took pre-
cedence over the affection even of a father, as is stated in Digest,
XLIX. xv. 19, 7). But in such a case a slave does not commit so great
a wrong as does a free man. So this will fall under the head of acts
for which the noble are punished more severely than the ignoble. See
Dige st 9 XL VIII. xix. 14, and also the statement of Baldus 6 that since
high station augments wrong, the noble's sin is blacker than that of a
common person, For who would expect in a slave other qualities than
those of his station ?
Furthermore, exception is made in the case of persons who by
treaty have the right to return to their own people, but prefer to remain
among the enemy. 1 And this is logical; for they would not enjoy the
right of postliminy, even if they returned to their people temporarily
without intending to remain. Thus Atilius Regulus had not the right
to make a will or to transact any other business, even while he was in
Rome, inasmuch as he purposed to return to Carthage. 8 [48']
Aside, then, from the cases above specified, all persons return by
postliminy to the same status they held at the time they were captured. 11
And this right pertains not less to those who have escaped from the
enemy by stratagem or through favour, than to those who make good
their escape by force and soldierly courage, 1
This right pertains to lands also. Hence, the former owner will 6
recover a field occupied by the enemy, just as soon as it is regained by
invasion or by treaty. 3 And this I think true despite any lapse of time,
whatever its length and extent. For what action for recovery 1 was open
to the owner during all that time ? Or what plea of possession could be
validated against one who was not in a position to sue ?*
As for the method of securing the owner's interest after recovery,
1 [For vSdicandum probably vindicandum should be read, TR.]
Chap. I]
and Warfare
whether by annulment proceedings or by reinstatement in full, there
are notes on Digest, IV. vi, 46. But though there be variation in the
method and forms, the fact itself remains unchanged, as Baldus
remarks on this law which latter affords the strongest support for
vindicating the owner's claim without regard for lapse of time.
And this is a case that could easily develop when a king has
acquired a province or a realm, presenting its castles and lands to his
followers as the French did at one time in the Kingdom of Naples
and the Duchy of Milan. For should he lose the province, and again
retake it even after a long interval, those earlier beneficiaries and their
heirs could claim once more the old-time holdings.
Ships, too, have postliminy not all, but ships of war; a so also
horses." If, therefore, my horse should fall into the hands of the
enemy and later should return to us, he must be restored to me, unless
a ransom has been paid for him (in that case I shall regain possession
after the price is refunded to the ransomer).
I hold the same view with regard to a horse which a servant has
stolen, deserting with it to the enemy. d But if both horse and owner
have come into the enemy's power by surrender, and the owner by
some chance regains his freedom, and then the horse returns to us, the
right of postliminy will not pertain, For it has already been said 1 above
that postliminy is not a privilege of those who surrender. 8
7 It is held that arms because generally not lost without disgrace
and, likewise, military dress do not return by postliminy to their first
owners. 1 Hence 2 the word of the Spartan woman to her son as she held
out his shield to him: '[Return] with this, or upon it.'
We must recognize, next, that as there is enslavement in war and
8 in peace (as already shown above), [49] so also postliminy appertains
to both these conditions. However, the status of those who are taken
in war and of those who are arrested in time of peace is not one and the
same. For persons captured in war enjoy postliminy both in war and
in time of peace; whereas if a man is arrested in time of peace, and
afterward there arises between those nations a war which is concluded
by a peace pact, the case of the man arrested in time of peace is not
covered by the pact, unless the latter is drawn up in such generous
terms that another verdict is called for.
9 And the reason for this difference is found in Digest, XLIX. xv. 12,
at the beginning, namely that the Romans desired that the hope of
returning home should rest on soldierly courage rather than upon the
making of peace. However, a gloss there understands that those who
are recovered in war always enjoy postliminy, and that compacts to the
contrary do not hold; whereas those recovered in time of peace may
Of. Dig.
XLIX. xv. 6
and 12, 7.
d According to
xv. 27.
See Dig.
XLIX. xv. 27.
i Dig. XLIX.
xv. 2 and 3.
[Reading sit for r& TR.] . , , ,
[Connect this with the parenthetic phrase in the first line of the paragraph. 1*.
1569.64
1 06 A Treatise on Military Matters [Part III
lose this right. For my part I do not see, in the first case, how those
who are already recovered are dependent upon a compact or why they
need fear the same; and the gloss would have done better to draw the
distinction between those lost in war and those lost in peace. But any
one who does not approve my interpretation above given is at liberty
to follow his own or that of the gloss.
And though the laws mDigest, XLIX. xv. 5, 2 and XLIX. xv. I2, 1 10
seem to be at variance, still in reality they do not conflict at all. For
the first refers to a person who goes among an unknown people, with
which there is no alliance of peace or friendship, whereas in the other it
appears that peace had already been made with the nation in question.
Moreover, the situation described inZ)f^,XLIX.xv. 12, is worthy n 2
of note, and it was my fortune to render a decision upon it. For a man
belonging to the French had come into a fortified post of the Emperor's
in a time of truce; and after war broke out unexpectedly, the captain
of the post arrested the man, compelling him to effect his ransom by
executing a bond. My decision was that he was lawfully captured, to
which judgement I was moved by the above-cited passage.
Again, it must be recognized that the soldiers commonly hold
that persons and the same is true of things do not pass immediately u 2
into the control of the enemy upon capture, but after they have
remained twenty-four hours in the hands of the captors, So Angelus*
reports, saying that mess-mates declare that plunder is never fully their
own, unless it has been in their possession overnight.
The laws, however, do not so state, nor does this appear to me
reasonable. For it may happen that soldiers acquire ownership of
plunder in a shorter space of time, whereas, under other circumstances,
they might not acquire it in a much longer period. Thus, assume that
even for three days they should hide in a forest [with their loot], being
unable to rejoin their friends, or suppose that within an hour they return
with their plunder within their own lines. In the former case would they
be said to have become owners, and in the latter will they not be at once so
declared ? More rational, then, is the ruling of the law that the plunder
1 '
* Dfc. XLIX. becomes theirs the instant they have regained their own lines.'
xv-5,nearthe A j i_- i i r i
And tins may be a consideration of large importance in connexion
with things which do not enjoy postliminy [49']. For suppose that the
enemy seize my cattle and conduct them at once within their lines, and
a little later, after caring for and resting their horses, they set out for
another point before the twenty-four hours have passed, and thus fall
in with a division of our soldiers, who rescue the cattle from them. In
that case the cattle will surely belong to the soldiers who recovered them,
1 [Belli's citation is I in bello. . in pace, the addition of , in pace being apparently a slip, as there
is no such section of the kw in question. ED,]
2 [These numbers in the Latin text do not follow the Synopsis. TR.]
Chap. I]
and Warfare
107
and they will not be returned to me; for they had ceased to be mine,
having become the property of the enemy as soon as they passed within
their lines. But suppose that even for four days the enemy had possession
of my cattle, lurking in the woods or elsewhere, because afraid to return
to their friends, and in that interval the animals are retaken by our
soldiers. Then the cattle will be mine, not yet having become the
property of new owners.
Following others, Jason treats this subject on Digest, XLL ii. I,
near the beginning,* 1 though he does not differentiate in the same way
as L Ripa also comments here, b and introduces another distinction
according as the recovery is made by hired soldiers or volunteers. This
distinction is not recognized by the law. He goes wrong also in his
interpretation of Code, VIII. 1. 12 and Digest, XLIX. xv. 20, I, failing
to note that under those laws restitution is brought about by the right
of postliminy, whereas his distinction as to hired soldiers or volunteers
originated with Calderinus.
Again, just as captured persons become the property of the
captors as soon as they are brought within the latter's lines; in like
manner, 1 if they escape from the hands of their captors, they do not at
once become their own masters nor revert to their former status, but
only after they have regained our lines, or at any rate have reached a
king or nation that is allied and friendly to us. a The reason for this
ruling is stated in Digest, XLL i. 44, near the beginning.
13 But my claim that goods which have not yet become the property
of the captors should be restored to the owners who held them before
capture does not harmonize with the statement of Giovanni d j Andrea,
quoted by Alexander, 6 to the effect that, without any reservation at all,
such property should be restored to them. They cite the regulations
in Digest, XLL i. 44, and Code, VIII. 1. 12, and from history they
assemble not a few cases where things captured by the enemy and kept
for many days being even brought within their lines nevertheless
were restored to the former owners. For example, Lucretius Tricipi-
tinus displayed in the Campus Martius the plunder which the Volscians
and Aequians 2 had captured in the Roman territory and in that of
their allies, the Hernicians, directing that whatever any one claimed as
his own within three days should be restored to him/
Again, the Dictator Aulus Postumius returned to the Latins and
Hernicians plunder which had been carried oS many days before by
the same Volscians and taken within their strongholds.* So also Aulus 3
Postumius and Lucius Julius restored goods seized by the people of
Tarquinii, allowing two days for the presentation of claims, 11 [50] Like-
wise Volumnius restored things captured by the Samnites, summoning
the owners by edict, and setting a date for the Campanians, allies of
1 [Omit 6- before *'to, TR.] * [For eqm read Aequi.-T*.] 3 [For Awe. read Aflw]. ED.]
Col, 3.
* ML, col. 2,
c Consilia, 1,
De Treuga et
Pace, col, 3,
words ant
talis fapiens.
xv. 5, at the
beginning j
ibid., 19, 3.
ii. i, at the be-
ginning.
* So Livy, III
e So Livy, IV
[xxix.4].
* See Livy, V
[xvi,5ff.].
i o 8 A Treatise on Military Matters [Part III
*SeeLivy,x the Romans, to claim their possessions." In fact in the Second Punic
[xx. 15], War a j so t j ie p roc0 nsul Gracchus 1 ordered the restitution of plunder,
b See Livy, allowing thirty days for claiming property. 13
xxrv[xvi. g ut as f or the citation of Digest, XLI. i, 44, it appears that the
things there referred to as captured were recovered at once. And Code,
VIII. 1. 12, has to do with human beings, who have postliminy after
any lapse of time. Moreover, the above precedents do not constitute
a rule; for we find that by law other provisions are actually made. And
although Martinus Laudensis c says without qualification that things
captured are to be returned to the original owners, he speaks in a very
uncritical fashion and without reckoning with the laws cited, But surely
the question should be judged and settled in accordance with these.
And although in the wars which with too great frequency are
waged among Christians there can be little scope (except in the cases
above cited) for the laws of postliminy, especially those laws which have
to do with human beings, still they may find application in the wars
waged with the Turks and Moors, with whom the ancient law of
nations is in force, so that many cases might arise in regard to which
it will be necessary to have recourse to these laws of postliminy.
For suppose that a man and wife from Pannonia, or Hungary, as 14
it is called, are taken as captives into Thrace, and there, by her husband,
the captive woman has a son, who by good fortune comes back to the
fatherland; should we not have recourse to these laws ? And here we
must make a distinction according as he returns in company with the
father or with the mother alone so that in the first case he establishes
agnatic relation with the father, and for that reason can inherit from
him. But in the second case there is nothing of this, for he shares
merely in the mother's status.
And the reason is that, since in his own person he does not enjoy 15
postliminy (in returning to an earlier status, which he really never
held), and since there is no postliminy of the father to rehabilitate the
son, the latter can have no postliminy, either active or passive, arising
either from the father's person or from his own. This is the unique
case in Code, VIII. 1. I ; and in fact such a son is called bastard and
fatherless by the jurisconsult in Digest, XLIX, xv. 25 a case without
parallel, that one born of parents legally wedded be bastard.
Hence, the son in question will not be heir to his natural father 16
(so unfavourable to him are the civil laws, which in this case take pre-
cedence over natural laws), unless special relief is granted him by the
Emperor (on the analogy of the relief afforded by the praetor to a person
emancipated), or unless we are to suppose that provision has been made
for him by the rescript of the deified Antoninus and his deified father. d
XLIX. xv. 9 , And what if a mother taken captive leaves behind in our state a
is, i.e, Gracchus. ED.]
Chap, I]
and Warfare
109
son who actually dies before her ? Will not the mother's heir be the
person most nearly related to her at the time of her death, and not the
son or his heirs ? a [50'] A case similar to this is presented in Code, V.
xviii, 5, where it is said that if a wife is carried away captive, the
husband is not bound to restore her dower before her actual death.
And somewhat like is another case treated in Code, VIII. 1. 3, where it
is ordered that a trustee be appointed for the property of captives of
this sort, i.e. persons who are in legal fiction dead, but in actual fact
still living.
17 And as for my remark above that the son does not transmit in-
heritance from his mother to his heir, even though, in case she dies
among the enemy, legal fiction assumes her to have been dead from the
very beginning of captivity, there is nothing strange in this. For, in
the first place, actual death is the point of importance here, and, in the
second place, the son would not transmit inheritance in a more
extreme case, namely, if she were actually dead at the time of his death,
but he had not been notified of her death.*
This, however, does not apply to the father's case. For should
the latter be among the enemy, and his son, left at home, dies without
knowing of his father's death, he yet transmits the inheritance from
his father to his own heir, in case it proves that the father was really
dead. This is due to the right of self-succession. So Code, VI. Iv. 8,
which cannot otherwise be harmonized with Code, VIII. 1. 4, as all the
post-glossators note.
They admit, however, that even a self-heir has not full power of
administration before notification of the father's death; hence contracts
will not be valid which he has entered into regarding the father's
18 property. This Baldus d pointed out as worthy of note.
And just as in the case above mentioned the acquisition and
administration of an inheritance is held in abeyance, such also will be
the limitation upon possession of property granted to a person emanci-
pated. 6 Hence if the patron be in the hands of the enemy and the freed-
man dies in the home country, the son of the patron (being likewise in
the home country) will not have possession in the matter of his goods. 1
19 And not only is inheritance from a person in captivity held in
20 abeyance, but what is really surprising the same thing is true of a
man who has been ransomed and has returned to his people, but who
has not yet 1 reimbursed the ransomer. g
There is also another opinion worthy of note in regard to a person
who has been ransomed, namely, that if he should die in the interval
before reimbursement, he would be released by his death from the
obligation to the ransomer, so that his heir will not be liable for the
amount. See the striking passage in Digest, XLIX. xv. 15, at the end.
1 [nundum, i.e. nondum. En.]
a So ordered in
Code, VIIL 1.
4-
* On Code VI.
xiv. 3.
* On Code VI.
Iv. 8, words
sed opponitw,
and words et
idea contigit.
See Dig.
XXXVII. iv.
i, 4-
'Seeflfc.
XXXVIII. ii.
4, 2; so also
gloss on Dig.
X. ii. 23.
XXXVIII.
xvi.i,4.
21
no
A Treatise on Military Matters
[Part III
a Z)jg.X,ii.22,
5 and 23;
Dig. XXX. ix.
bLivyXXVI
[xi.6ff.].
Z>zg.XLIX.
xv. 10 ; Dig.
XXVHI,vi.28,
at the begin-
ning.
vi. 28, i.
* On Dig.
XLIX. xv. 10,
there, word
tfstamento;
and On Dig.
XXVIII. vi,
28.
Such a situation might develop even in these days, as in the case
of a prisoner who has given a pledge and supplied a bondsman for
payment on a certain day. Should he die before that time, neither 22
his heir nor his bondsman would be liable, according to the law cited.
And this should not be forgotten.
Another present-day application of the law of postliminy might
be made, if we ask whether a person may sell property of his (e.g. a city
[51] or country estate) now in the possession of the enemy, and whether
such sale would be valid. And it might appear that the answer should
be negative, in view of Digest, XLV, i. 103, where it is stated that we 23
have no right to traffic in things belonging to the enemy.
But the other view is the sounder, that the contract holds by virtue
of the prospect of postliminy. a Hence we read in Livy that when 24
Hannibal had reached the fourth milestone from Rome, and learned
that the plain in which he was encamped had been sold for the price
at which it was held before his arrival, 1 he was filled with wrath, and
calling a crier, he ordered the sale of the bankers' chambers in the
Roman forum. b And the sale of the land was valid, according to Digest,
X, ii. 22 and 23, above cited, but the sale of the chambers was not
valid because these were original properties of the enemy, and hence
there was no place for the aforementioned prospect of postliminy.
Postliminy concerns also pupillary testaments, if, after making
such a will, a father is captured and dies in the hands of the enemy.
This is a case that has many subdivisions.
For at times the father dies among the enemy, leaving a son below
the age of puberty at home; in which case the will stands. Or the son
does not actually survive the father, and the will is invalidated,*
On the other hand, at times it is the son that is captured, and the
father dies at home. In that case, make a distinction: (i) the son was
captured while the father was still living, and then the will is made
null, because, as I have pointed out, by legal fiction the son is regarded as
dead from the first hour of captivity, and because he left no property in
the state and, consequently, no heir : (2) the son was captured after the
father's death, and the will holds. 6 Whether this is so as a matter of strict
right or by favour of the praetor is a point discussed by the Doctors. 1
Moreover, at times both father and son are captured, the father
first and the son afterward. In that case, if both die in captivity the
will is void though this may seem strange, in view of the fact that
both by legal fiction are regarded as dead from the first hour of
captivity, so that the father, being first to be captured, is in fiction
first to die. And it seems particularly strange in case the father in
actual fact died first, whence it might appear that the pupillary testa-
ment should stand.
1 [For oditctum read adventum. TR.]
Chap. I]
and Warfare
in
25 ^ But a gloss 1 meets this objection by saying that, in regard to the
ruling that the will holds when a son is captured after the death of the
father, the^ reference must be to natural death, and not to the death
of legal fiction ; for a captive father, despite the fiction of death, may yet
return. So also says the Glossator in the last gloss on Digest XXVIII.
vi. 29, where there is a case in point. This gloss states that though the
condition of a son who is at home is meanwhile independent, yet his
status is unsettled in view of the aforementioned possibility 'of the
father's return (on this there is a good passage in [51'] Digest, XLIX.
xv. 22, 2).
^ And so if it chances that the father die in actual fact (the time of
which must necessarily be looked into), and the son is found at that
time to be incapacitated to succeed to the father's estate, it follows
naturally that the father's will becomes null, and, consequently, that a
pupillary testament is void also. 13
26 This, however, seems in conflict with a passage in Digest, XLIX.
xv. II, unless we are to understand that the Lex Cornelia supports the
claim of the substitute heir not otherwise than if, i.e. only if, after the
death of the father among the enemy, the son returns and dies at
home; in which case the words 'not otherwise 3 will stand, not in the
comparative, but in an inferential sense. But the Doctors do not touch
this point.
Again, the laws of postliminy concern the case described in
Digest, XLIX. xv. 12, 5, in that they sustain the codicils of a captive
who has executed a will before being taken by the enemy provided,
however, that he returns to his people.
These laws apply also to a case where a captive dies among the
enemy, having previously executed a will, with subsequent acknow-
ledgement of a new-born son who dies before him. For under these
conditions the heir named in the will may not succeed to the inheri-
tance, and the will is void on account of the interposition of the son,
despite the subsequent death of the latter. (On the other hand, had
the father died at home, in fairness the will would have regained its
validity ).
27 And, to bring to an end this discussion of postliminy, we should
know that just as this right is ours in regard to things recovered from
the enemy, just so in turn it applies to them in regard to things re-
covered from us. For the things which we capture from the enemy
become ours on no different terms than they acquire the things which
they capture from our people. So said Aretinus, d citing Hostiensis and
de Ancharano. Thus also Albericus. 6
28 Accordingly the enemy will recover ownership not only of land
or other possessions lost in war with us, but also of anything that they
took from us, if we regain it, and it subsequently comes back into their
a On Dig.
XXVIII. vi.
28, words ex
eadem lege, at
the end.
b Inst. II. xvi,
5-
c SoZ)zg.XLIX.
xv. 22, 4;
iii. 15 and 12.
* On Dig.
XXVIII. i. 13,
col. 3, at end.
i, col, 6, words
ex praedictis
satis patet,
112
A Treatise on Military Matters
[Part III
at end, and 6;
Dig. XLIX.
xv. 12, near
the beginning,
b See sole refer-
ence in Dig.
XLIX. xv. 28,
at end,
d Cotsilia, III.
96 (Proponitur
guod consue-
tude civitatis
AsU).
hands. And the logic of this is manifest. For since these things
belonged to the enemy by the law of war quite as much as if they had
secured them by contract, a they gain ownership through postliminy,
just as we should, There is, however, this reservation unless at the
conclusion of hostilities it is provided in the articles of peace that
captives be returned. In this case the latter remain 1 free to the extent
that, if on renewal of war they are again captured, they do not revert
to the former owner nor to the former enslavement and servitude, but
become the property of the captor . b
From this it seems to me that we should infer that if (by terms of
a treaty such as the French made with the Spanish [52] and the
Emperor in the year 1544 un ^er the name of a peace) it is stipulated
that confiscated property be restored to exiles and rebels ; supposing
war thereafter to be renewed (as happened in the seventh year after the
above-mentioned peace), surely that earlier rebellion will create no
prejudice, nor, with it as a pretext, will that same property be forfeited
to the fiscus or to the parties to whom it had been given.
I add, further, that if in the time intervening between the peace
and the subsequent war, those rebels I choose to refer to them thus
inexactly; for those are no longer rebels who have been pardoned, even
though they have not returned home if, I say, these rebels have in the
meantime acquired anything (suppose, for example, that one of them
loses his wife, whose dower in conformity with the statutes falls to the
husband), such acquisitions are not revocable. For it cannot be said
that a person is cut off from the benefit of the statutes of his country
who has obtained full pardon for his wrongdoing. Consequently, if he
engages in a new rebellion, on this new provocation his acquisitions
escheat to the fiscus, and not to the agnates of the deceased wife. At
Milan I heard an argument on this point against Bernardus de Comite.
However, I should judge otherwise in case a like situation arose
under the compact made in the year 1555, which was called the Five
Years' Truce, though it lasted little more than five months. For, by
the terms of this pact, only the revenue and income from their
property was allowed the exiles which was rather a reprieve than a
forgiveness of wrongdoing and reinstatement. For, after a reprieve
expires, we fall back again into the prior status.
Baldus d takes up the question whether a man who rebels against his
country forfeits its privileges; and he says that we must determine
whether he was a rebel at the exact time his wife died in order to know
whether he is entitled to succeed to her property and to acquire the
dower by virtue of a statute. See his fuller statement. 6
1 [For remnet read remnent. TR.]
[521
HERE BEGINS
THE FOURTH PART OF THE WORK
1560-64
CHAPTER I
WHETHER AMONG CHRISTIANS PRISONERS OF WAR BECOME SLAVES
SYNOPSIS
1 Whether Christians captured by Chris-
tians are made slaves.
2 Captives in a war declared by the Pope
or Emperor become slaves of the captors
a rule not enforced.
3 Christians are mutually brothers.
BUT that we should now return, as it were by postliminy, to the
discussion begun 1 regarding enslavement, I remarked above that in the
wars which are waged among Christians the laws of postliminy have
1 little application, my intention being that we should raise the question
whether, among Christians, captured persons become slaves of the
captors. For in case they were to be made slaves, these laws would still
be very much in point.
And as I have already mentioned above, they do become slaves,
according to Innocent* and Bartolus b (but both are thinking of a war
declared by the Emperor or the Pope). This accords also with the
view of Baldus and Giovanni d' Andrea/ who introduces a question
regarding Enrico, son of the Emperor Frederick, who was captured by
the people of Bologna, and died among them, after making a will there,
which will, he says, was void. [53] Such too is the verdict of Aretinus, 6
who declared, however, that regard must be had for custom. There is
support also in the statement of Baldus' that such prisoners are in the
category of cattle or other movables, because they are no longer
persons, but things. And this was the view of Calderinus.*
2 But, even in regard to a war declared by the Emperor, the other
view was held by Saliceto, h and it accords with the idea of Bartolus. 1
This has become the rule; for we have very often known such prisoners
to remain free persons. But they had imposed upon them the burden
of a ransom to the extent of their ability, or in a sum agreed upon,
being held meanwhile by the captors as security 1 (see also Aretinus k ).
And in case the prisoners are unwilling to ransom themselves, they can
be compelled to do so. This rule the soldiers enforce even by torture,
so Saliceto 1 reports.
And in such plight the prisoner will find no help in the edict De eo
quod metus causa, as Saliceto there m says, because this edict does not
apply to an action in arms and pertaining to regular warfare (and to
hold otherwise would be to extend wars indefinitely, and never to get
dear of their occasion. Hence Albericus'also stated that a person justly
Decretals, II.
xxiv. 29.
* On Dig.
XXVIII. 1.13;
more clearly
On Dig.
XLIX. xv. 24,
last col., words
tertio modo.
OnCotoWL
xiv. 4.
*Addit.to
Durandus, De
Instr.Edi.,
e On Dig.
XXVIII. L 13,
COl. 2.
358.
iConsilia,I,De
Treuga et
Pace, col. 3,
words et dicit
Innocentw.
* On Code
VIIL1.2.
1 On Dig.
XLIX. xv. 24,
last words.
1 See Code,
VIII. 1.6, 8,
and 20,
* On Dig.
XXVIII. 1.13.
1.2.
b 2 Chronicles,
xxviiifcffj.
Pt. II, chap.
xijPt.II,
chap,xii,no. i.
n6
A Treatise on Military Matters
[Part IV
imprisoned is legally under obligation to the person who imprisons).
And Baldus, a too, declared that the fear in this case is inherent in the
fact of victory, and, therefore, it is lawful to utilize it,
As for my statement that this has become current practice,
justification for this procedure is found also in the law. For Digest,
XLIX. xv. 21, I, states that, in civil dissensions, a man of the opposing
party has not the status of an enemy, and for that reason he is not made
a captive, nor does he need postliminy.
For Christians, no less than Romans, are brothers and fellow- 3
citizens to one another, as the Scriptures 13 show. For when the Israelites
were carrying off a great number of captives from Jerusalem, a prophet
met them, protesting vehemently against the enslavement, and
demanded that all the prisoners be released; for, as he said, the fierce
wrath of the Lord was upon the captors. Being brothers, therefore, and
not enemies, even though they go to war, Christians do not become
slaves of the captors. See, however, what I have said in earlier chapters.
CHAPTER II
THE PROCEDURE FOR VICTORS WHO HAVE A DISPUTE REGARDING A
PRISONER
[53']
SYNOPSIS
1 Whether comrades-in-arms may take
prisoners away from one another:
2 And what with regard to other plunder
taken from the enemy?
3 He who takes away plunder from a com-
rade-in-arms is liable for it, even though
it.
55 at end
BUT to return at length to the actual subject of war, inasmuch as
it has already been stated that prisoners do not become the property
of the captors until they have been brought within the latter's lines,
the question is raised whether it is permissible in the interim for a i
comrade-in-arms to take a prisoner by force from the hands of his
captor. This often occurs both in battle and in the plundering of 2
cities; for the soldiers fight among themselves for the loot and the
prisoners, wresting the same from one another.
And although I did state that things captured do not become the 3
property of the captors until they have taken them to a secure place,
I do not, however, for that reason hold that it is permissible for com-
rades-in-arms to contend with regard to these. d In fact it might be said
that a spoiler of this type is guilty of theft or public outrage; 6 and,
Chap. II]
and Warfare
further, there will be an inherent flaw affecting also the claim of the
person to whom the thing in question may have been transferred. So
Digest, XLIII. xxix. 3, 6 ('if, though informed, he retains him, he is
not guiltless of intentional wrong').
The second captor will still be liable, even though he does not keep
the prisoner, but allows him to go. a And not only will he be liable
though he no longer with intentional wrong retains the prisoner, but
also if he releases him by order of the general assuming, however,
that something has accrued to him personally, 11 And if he disposes of
the prisoner dishonestly, he will then be liable in full and for all claims;
so the glossator and the Doctors. See a fuller discussion of this topic
below. d
at the begin-
ning,
b Dig. VI. i.is
i-
c Ibid.
d Chap, vii,
passim.
[54]
CHAPTER III
WHETHER PRISONERS MAY BE TRANSFERRED 1 OR SOLD
SYNOPSIS
1 Whether a prisoner may be transferred or
sold to another person,
2 Whether the claim of ransom for a cap-
tive may be transferred to another.
3 Whether the person who takes over a
transferred claim may fix the ransom at
his own figure.
4 Any one may transfer his rights.
5 Whether the privilege of fixing the sum
may be transferred. So No. 7.
6 In these days ransom takes the place of
enslavement.
[7 See No. 5 above. TR.]
1 ANOTHER question also arises. In battle it often happens that very
distinguished prisoners taken from the enemy fall into the hands of the
common soldiers, who sell them as they can, or according to agreement,
and the purchasers later exact from these prisoners an immense amount
of ransom, even up to many thousands of crowns though they bought
2 them for a few hundreds. We ask whether this is legitimate business;
also, whether it is permissible to exact from a prisoner a larger ransom
than the price at which he was sold.
3 And in support of the view that it is not permissible, and that such
contracts do not hold, Code, I. iv. I (according to one interpretation)
used to be cited; see also the gloss there. And there seems a clearer
passage in Digest, XLIX. xv. 19, 9, where it is stated that it is not
permissible to exact more from a ransomed person than the price paid
for his ransom which is listed as unique by Franciscus Cremensis, e *singukria,
100.
n8
A Treatise on Military Matters
[Part IV
On Decretals
V.vi. 1 1, no, 3,
b Z%XVIII.i.
yo;Z)zg.XLV.
i. 103.
c ode, VII. ii,
i3;Z)fc,XL.
vii, 9, at the
beginning, and
29;Z)zg.XL.
V. 24, 21,
near middle.
d On Cob VI.
xlii, 7, last col.,
0e testator-,
and On Code
IV. xxxviii.
15* qu. s>
where also
Saliceto.
Ixxv.
'0n
1,2.
1.76.
* On Code II.
iii. 6, car. i.
though he quotes, not 1 the paragraph here cited, but Code, VIII, 1. 1 and
20, and Felinus, a too, touches this point.
It is argued, in the third place, that a free body is not subject to
sale. 1 ' Therefore, since (as I have already said) these captives do not
become slaves, it follows that they may not be disposed of by sale.
In the fourth place, there is support for this view in logic. For the
captor has already shown himself content with the price which he
accepted, hence the captive in question (like a slave with conditional
freedom) may not be bound to harder conditions nor put under a
handicap.
In favour of the other view is the fact that a person may sell a 4.
claim or transfer it in any way he pleases. Now it was the right of the
original holder to fix a ransom according to his judgement (for this is
the law of war, which has displaced enslavement). Hence the party 5
taking over the claim will have the same power (for also the right of
fixing terms can be transferred, according to Baldus. d And although
Alexander, 6 following Imolensis, is in doubt regarding this ruling of
Baldus, he yet does not venture to discard it).
And it seems that this principle should be insisted upon the more
strongly in the present case, in view of the fact that the fixing of the
estimate is not fully in the hands of the original holder. For if he fixes
an unjust price and demands an unreasonable ransom, he will be taken
in hand by the general, as Saliceto 1 pointed out. The same, then, will
be the case of the party taking over the claim.
Note, too, that (as above indicated) ransom has displaced enslave- 6
ment. Accordingly, there should be an extension of the same power
and right; and such slaves without doubt were negotiable.
The uncertainty, however, turns on this, whether [54'] the right 7
of price-fixing is transferable. Bartolus 8 declared that it is not, citing
Digest, XL. v. 24 and 15. And Alciati* holds for 2 the negative, saying
that this sort of traffic is little short of the sale of free men, and that
it is subversive of good morals. Ripa, 1 too, treats the same problem,
stating that a right may be transferred, but that it should be done
without hurt to the prisoner. Hence, says he, the bond entered into
with the original holder may not be raised; and the prisoner may not
be burdened more than he would have been by the original holder.
For ransom ought to be merciful. So Ripa.
However, I have known prominent men in the army not to keep
clear of such business, and to receive ransoms in a high figure, even up
to fifty thousand crowns, though the prisoner had been sold for hardly
five hundred or a thousand. And so I presume that it would be very
difficult to protect a prisoner from the operation of camp usage, though
I believe the above negative position is the more righteous and just.
1 [For not. read o. TR.] 2 [For in ter. read inter TR.]
Chap. W]
and Warfare
119
CHAPTER IV
WHETHER THE AMOUNT OF RANSOM MAY BE RAISED
SYNOPSIS
I The amount of ransom, once fixed, cannot be raised.
i WE ask, also, whether it is allowable to change and increase the
amount of ransom, after it has once been determined and agreed upon
with the prisoner let us say, because of fuller information as to his
quality, nobility, and wealth. And Guy de la Pape a declared that in the
court to which he refers it was ruled that the practice is not permissible.
This is a reasonable view; for the captor is to blame for not making
a better investigation. But in practice the rule is little observed,
because of the lax standards in the army. For the arguments, see de la
Pape,
* Decisions*,
113 (In f ado
gtterranim).
CHAPTER V
WHETHER IT IS PERMISSIBLE FOR PROVINCIALS TO FIGHT
WITH THE ENEMY
SYNOPSIS
1 Whether provincials may lawfully take
arms against the soldiers of the enemy.
2 Rustics most harsh to the soldiery.
3 He who has been released from the oath
may not serve as a soldier.
4 It is permissible to resist force by force.
5 Vengeance is not permissible.
6 Those who have not taken oath may not
fight. [55]
7 Justice of the unjust.
8 Under orders of the general it is lawful
for provincials to fight.
9 Those who fight without orders are
guilty of the blood shed.
j FROM what has been said above another question arises which is
rather unusual. It has been stated that it is permissible for soldiers to
plunder even the provincials of the enemy. Is it ever permissible for
the provincials, in turn, to take soldiers captive, and, as the saying is,
to give tit for tat ?
2 This happens not infrequently; for often, when out plundering,
soldiers fall into the hands of the rustics, who at times handle them very
roughly.
3 And we may appeal to Cicero as an authority. For he relates that
1 (This passage is bracketed by modem editors. TR.]
b On Duties [I.
120
A Treatise on Military Matters
[Part IV
3, with com-
ments thereon.
b See gloss on
Decretum II.
xxiii. i, 4,
mdprinceps;
and on
Decretum II.
xxiii.5,41-
* See Decretum,
II. xxiii, 3, i.
d According to
Decretum, II.
xxiii. 3. 3,
Pt.II,chap.
xi.
' See Decretum,
II. xxiii. 5. 13
and 15; and
Decretum, II.
xxiii. 8, 4-
B Pt. II, chap.
xviii, no. 10.
ii. 7.
when Popilius for certain reasons had mustered out a legion in which
the son of Cato was serving, and the latter because of his liking for war
had remained with the army, Cato wrote to Popilius that if he allowed
the son to remain there, he should cause him to take a second military
oath, because, having lost his previous right, he could not now lawfully
fight against the enemy. And he warned his son not to engage in battle
before renewing the oath; for he said that it was not right for him, not
being a soldier, to take part in battle with the enemy, So Cicero.
Hence we find generals highly indignant when they hear that pro-
vincials have ventured some attack upon their soldiers, though they
are little concerned, or not at all, at the infliction of any amount of evil
upon the provincials by their troops.
But this does not accord with natural fairness; for why should I
regard you as an enemy, and you not reciprocate ? And such procedure
seems to be allowed even by divine justice, according to the word:
Whatsoever ye would that men should do to you, do ye even so to
them'.
At this point I do not mean to bring into question my previous
statement that if a war is unjust, not even defence is permissible. 1 4
merely ask this: what is permissible for provincials f And I judge that
they may resist force with force, but may not take vengeance, nor be the 5
aggressors. Even in defence I believe that due restraint is required.*
Otherwise men who have not taken the service oath may not fight, 11 6
For the principle that hostile action is to be repaid to the enemy (aside 7
from necessary defensive operations) is the justice of the unjust. And
it suffices that non-combatants be defended by the soldiers of their
own party, without themselves taking arms. d [55']
But if a ruler were to order provincials to make an attack upon 8
this kind of bandits (not to say enemies) it would be permissible to
obey, according to Decretum^ II. xxiii. 4. 36 and what I have stated in
a previous passage. 6
But if they so act at their own charges, they become guilty of 9
crime f . By all means, therefore, provincials should beware of such
wrongdoing. (This seems to conflict with what I have said above, 8
citing Angelus; 11 but I think that that earlier statement should be
interpreted in the light of the present distinction.)
Chap. VI]
and Warfare
121
CHAPTER VI
WHETHER IT IS PERMISSIBLE TO VISIT THE TERRITORY OF THE ENEMY
SYNOPSIS
1 For good reason it is permissible to
visit the enemy's territory.
2 However, this normally is among the
things not allowed,
3 A lord may forbid his subjects to visit
the territory of the enemy,
4 A subject may not be prevented from
going where he wills.
1 INCIDENTALLY I raise the further question whether provincials,
without offence to their lords, may visit the territory of the enemy
or send letters or messengers thereto. And d'Isernia and de Afflictis a
judge that though such action may for certain reasons be allowed (e.g.
to consult a very skilful lawyer or physician, or even to visit a friend or
2 relative, or to collect from a debtor money that is due), yet, in view of
the fact that the act belongs to the category of things forbidden*, it
will be necessary that a legitimate cause for going be demonstrated,
the offender meanwhile being kept in confinement. Provincials, there-
fore, should be wary of taking risks.
3 Hence, it is less surprising that Baldus says that a lord at war may
forbid his subjects to visit the territory of the enemy, in order that all
suspicion and chance of treachery be eliminated although in other
4 respects they are independent and free persons (albeit subjects), and
may not be restrained from trade and travel, except for due cause.
xxiv, 5; no.
25 of the latter.
iv. i and 2.
e Consilia, I.
483 (Mag.
dominus
Nanmis^no. 5.
[56]
CHAPTER VII
WHETHER A PRISONER MAY BE TAKEN A SECOND TIME
SYNOPSIS
i Whether a prisoner may be taken a second
time by another of the same party.
2 1 Whether a man becomes a prisoner who
has given his sword or helmet in token of
surrender.
3 1 Whether a prisoner on the field or in
battle, if put upon his honour, may law-
fully rejoin his friends.
4 Prisoners so named from capturing (cafere).
5 A pledge constrains as much as a prison,
6 Ransom replaces enslavement.
7 Usage has established the principle that a
prisoner, put upon his honour, cannot be
taken by any one else.
8 Ransom may be multiplied, according to
Baldus.
9 Refutation of Baldus' view.
: I STATED above that it is not permissible for victors to deprive one
another of prisoners. This has a bearing upon another question. In
1 [Numbers 2 and 3 should be transposed. TR.]
1569.64
122
A Treatise on Military Matters
[Part IV
1. 2, penult,
col,, words aut
dixit.
i. 3 (at end)
and 44 (at the
"Dig.XLLii.
3, 14-
d On Code
VIII. 1. 2.
According to
and 17.
*flfC
xlvii. 7.
battle a soldier captures one of the enemy, and while he is in pursuit
of others, a comrade-in-arms makes the same man prisoner, We ask:
To which does the captive belong f
Here I recognized a distinction ; (i) the man was put upon his honour, 2
and then, if his party wins, and retakes him, it is lawful for him to
remain with them, even despite that pledge of his; (2) it was further
agreed that he should not escape, even though his friends should prevail,
and then it will not be permissible for him to break his promise, even
though they win. So Saliceto. a
The following case developed: A prisoner, in token of surrender, 3
had given his sword to one of our soldiers, promising not to escape, but
remained armed upon his horse, carrying a mace. A little later he fell
in the way of another of our men on horseback, who took away his
mace, and was leading along the prisoner with bridle-reins hanging
from the horse's neck, They now encountered the enemy, who made
a victorious assault, and scattered our whole cavalry division far and
wide; whereupon the prisoner's horse, unchecked by bridle, of its own
accord galloped after our men in their retreat until they met our
infantry, who checked the flight of our cavalry, drove back the enemy,
and seized the prisoner, whom the horse had brought along of its own
accord. Query: To whom did the prisoner really belong to the first
man, to whom he had surrendered his sword and given his word; or to
the second, who had taken away his mace and deprived him of the
bridle of his horse; or to the infantryman, who in the third instance
had captured him riding at random ?
My opinion was that a verdict should be rendered in favour of the
infantryman. For through the victorious onslaught of his friends (a
fact that concerned the men who took him in the first and second [56']
instances) the prisoner had regained his former liberty. 13 For what is
left to its natural free state is not regarded as being owned; and there
is support also in the statement of Saliceto above quoted/ The
prisoner, then, as I have said, will belong to the infantryman j e for what
belongs to no one becomes the property of the first taker.
As to the general question, however, we need to proceed warily,
because Baldus 1 appears to hold the affirmative view. For although my
copy of his work (and others which I have consulted) is full of errors,
yet, so far as can be determined, he supposes the case of a prisoner who
was taken by several persons at different times in the same battle, and
asks what should be the decision.
And in regard to this nice question, as he calls it, he makes a dis-
tinction according as the original captor actually kept hold of the
prisoner or put him upon his honour. In the first case, the man is truly
and entirely the property of the first taker, who was guarding him; for, 4
says he, captives are so called from 'capture', just as chattels (mancipia)
Chap, VII]
and Warfare
123
are so named because they are 'taken by hand' (mam cohere}. But in
case the prisoner was not guarded, but put upon parole, his word and
promise are disregarded if he is taken by another's soldierly courage
and carried off.
And in this second case he again makes a subdivision: (i) either the
second captor, too, left the man on parole; and then 1 out of deference
to those who had first taken the prisoner, the second captor loses his
claim, and the man remains the prisoner of the first takers; or (2)
the first takers rescued the man from the hands of the second captor,
as we often see done among comrades-in-arms; and then also it must
be ruled that the man remains the prisoner of these first takers. For,
says Baldus, a a person is not counted captured, unless he remains
captured.
And though Digest, XLI. i. 55, seems to belie this in saying that
action may be brought against a person who had released or appro-
priated a boar that has fallen into my snare, the difficulty is solved,
however, says Baldus, in that the case of a beast (which, immediately
upon capture, becomes the property of the taker) is different from that
of these prisoners, over whom ownership is not acquired, unless they
are such as become slaves upon capture as when the Emperor or the
Pope (he says) has declared war upon those who rebel against them.
He holds, however, that in cases where the first taker rescues a
prisoner by force from the hand of the second, action in factum ad
interesse may be instituted against him,* just as partner is liable to
partner for loss incurred. Thus the soldier will be liable to his comrade-
in-arms. This he said is true of the law of war and limited by custom,
which should be followed when it is divergent.
Thus Baldus held; but, though his authority is weighty, it seems
to me that we should hold without qualification that the above
prisoner, whether [57] led about by hand or put upon his honour, may
not be taken by another of the same party.
For in case he becomes a slave, he is no longer free, but the
property of the first taker, and cannot pass out of the power of the
latter, unless he is recovered by the soldierly courage of his own
partisans, or at least returns to them through postliminy.* (For what-
5 ever I have captured continues to be mine so long as it is kept in my
custody. And the man who is oath-bound is kept in my custody no
less than one retained by hand or chain, because by my intent and his
pledge I retain possession of him in the same way that I do not lose
possession of a slave at the times when he is not with me. 6 ) ^
And even if he does not become a slave of the captor, still we must
6 reckon with the right of ransom and bonding, which replaces enslave-
i [Omitting the following out, which seems to be unnecessarily repeated in the text ; or there may
be an even more extensive corruption of the text at this point TR.]
Dig. XLI. i.
S 5 ;C^,VIII.
xl, 13.
b According to
Dig. XLI. i.
55-
c Z% XVII. ii.
52, 3-
at the begin-
ning and
throughout.
fc, XLLii.
44*
124
A Treatise on Military Matters
[Part IV
,
XLVIL iv, i,
10.
b On the same
law, col, 2,
capti.
5. IS-
ment; and the decision here should be reached according to the same
'Cf.Dfeii.ri. rule. a
And I see that this is the view supported by custom and practice. 7
For as soon as any one has surrendered, and in token thereof yields up
and passes over his sword or any other kind of equipment, he comes in
such wise into the power of the captor that no other of that party can
acquire a claim to him, unless it chances that he has meanwhile been
rescued by his friends. And the commanding general ought to insist
upon this, lest quarrels arise among his soldiers, and lest those who are
taking prisoners be obliged to quit fighting.
I think that Baldus b is even farther astray when he makes the
following distinction: (i) the man captured becomes the slave of the
captor; and then he cannot be taken by another of that party, even
though merely put upon his honour; for he cannot be wholly the slave
of each of two people; (2) he does not become a slave, but is put under
a bond to pay ransom. And as that process may be repeated^ so capture 8
too may be repeated. Hence a person may be prisoner in full not
merely to one captor or to two, but even to many; just as a vassal may
be vassal to many, and a freedman may be a freedman to many.
But even under this second head I think the verdict should be 9
negative, in view of what I have said above. And as a matter of fact,
that reasoning of Baldus would apply as well to a person who is led
about after capture as to one who has been put upon his honour. For,
since the act may be repeated, I do you no wrong, if I too make captive
and lay hands upon a prisoner you are leading, inasmuch as he can
render satisfaction to both of us. But this Baldus himself denies. It
would follow, further, that when a person has ransomed himself on a
fair basis or at the figure demanded by the first taker, he would proceed
in the same way with the second and the third, and so on, and there
would be a series without end.
But, as I have shown, the opposite practice is observed, namely
that the first taker, against all others, has an exclusive right to the
prisoner. And this is fairer, since (as I have said) ransom has taken the
place of enslavement, and the prisoner could have become the slave of
one only.
Chap. VIII]
and Warfare
125
[57T
CHAPTER VIII
WHETHER A PRISONER SHOULD KEEP FAITH, IF ALLOWED TO DEPART
UNDER PROMISE TO RETURN
SYNOPSIS
1 Whether a prisoner, released under
promise to return, is bound to come
bad.
2 A person captured by brigands is not
bound to keep a promise.
3 An oath should be kept both by right
of law and the usage of war.
4 Whether an oath should be kept, if fear
of death or torture is brought to bear.
Refutation of those who uphold the
negative.
5 Whether a prisoner who has promised to
return to the custody of the enemy
should keep his promise, in case his
sovereign orders otherwise.
6 Refutation of the glossator and Doctors
on Digest, II. xiv. 5 to the effect that
a commanding general should keep
faith with the enemy, but that the
common soldier need not.
7 Agreements prejudicial to the public
welfare are not to be kept.
8 Agreements conflicting with an earlier
oath are not binding.
9 In the courts, fairness should be care-
fully studied.
10 Military cases should be decided on the
basis of merit and justice.
11 The reward of success belongs to the
owner of a horse loaned for another's
use, and not to the rider.
12 Whether a person loaning a horse to a
soldier is a sharer in the gain accruing
from the expedition.
13 Agreement or clubbing among the
soldiers regarding plunder taken from
the enemy is permissible.
14 If a consideration becomes no considera-
tion, payment is recovered.
15 Whether a person who takes a monastery
is regarded as having taken also the
individual places therein and all the
people there sheltered.
16 Container and contained are in the
same category.
17 A wild animal that is wounded does not
become the property of the person who
inflicts the wound.
1 8 A thing cannot be acquired by intent if
it is not 1 apprehended by some cor-
poreal means.
~
_
all that is therein.
20 When sight of a thing is sufficient to
establish possession.
21 Holy places should be immune even
when the sack of a city is permitted.
22 The Goths spared churches in the sack
of cities,
23 The sacking of a city is not permissible,
unless the whole people has sinned.
BALDUS* also raises the question whether a prisoner, allowed to go
1 under promise to return, is bound to come back. And he says that in
case he is the prisoner of a public enemy, he need not keep the promise, an &'
Therefore, such a person is not bound to return, but he may do so if
he chooses.
If Baldus is thinking [58] of enemies in the sense of brigands (my
2 copy of his work being full of errors), I believe that his statement is
1 [Inserting iton after mnistmo. See the text under this number. TR.]
126
A Treatise on Military Matters
[Part IV
* On same law,
no. i.
b On same law,
at end of Com-
mentary.
According to
Dig. XLIX.
xv. 24; Dig. L.
xvi. 118.
e Words sed si
non essent cap-
tivantes de
numero sol"
dalium.
1 On Constitu-
tions of
Clement, II. xi.
i.
s Ibid., per
molentiam.
* Conflict, II.
35* (Licet
latrunculis),
cited above
also.
i Ibid.
J [On Duties, I.
39]-
*DeDuello,sive
de re mititari.
correct, in view of the gloss on Digest, III. v. 20, near the beginning
(see also the Doctors there), where Angelus says that a prisoner, thus
set free, acts wisely if he does not return. For he had not been lawfully
captured, nor yet by real enemies; hence a ransom is not owed to his
captors, even though it be promised. So say Angelus* and Bartolus. b
But if we are thinking of enemies in the strict sense of the term,
surely we have in common with them rights of enslavement and post-
liminy, and they with us. d And these must be observed. And my verdict
is the same regarding war among Christians, even though the prisoners
then do not become slaves. For a person is bound both to return, if
he has given his promise, and also to pay a ransom, if he has so agreed
whatever Baldus may intend in the passage cited. 6
And there is no difficulty with the gloss 1 which he cites. For it
has to do with a person who, if he returns, unjustly incurs danger to
his civil rights and his life; and in such a case a man is not bound to
return, even though he has taken an oath. 8 The case is different when
it is a question of danger to money and purse.
Baldus again h treats this same question, and reaches the conclusion
that faith need not be kept with brigands, even though a promise has
been given and an oath taken. But if it be a regular war, there both
capture and contract are lawful; and an oath must be kept, as well from 3
the point of view of law, as from that of the usage of war. He also con-
cludes there that a person who has been allowed to depart on parole or
through the substitution of hostages is not counted as released which
makes for the view above expressed.
However, such hardship might be impending (e.g. of having to 4
run the risk of losing life itself) that it would become permissible to
break a pledge; for it is allowable even by deceit to save one's life; so
Baldus. 1 But I question whether this last is sound and right; for even
pagans, who lived by the light of nature alone, have declared for the
principle that if, under stress of circumstances, individuals have made
any promise to the enemy, faith must be kept on that point.
Cicero (whose view this is) adds further: 1 'When captured by the
Carthaginians in the First Punic War, Regulus had been sent to Rome to
effect an exchange of prisoners, having previously taken an oath that he
would come back; on his arrival, he first advised against exchanging the
Carthaginian prisoners; and then, though his relatives and friends tried
to detain him, he chose rather to return to torture than to break a
pledge given to the enemy. 5 What then would become a Christian man
who takes an oath, let others judge.
This question is treated also by Paris de Puteo, k who makes a dis-
tinction between a person taken in a duel and a person taken in war.
The first case I pass over. But under the second head he says that a 5
promise must be kept, even though the sovereign himself orders other-
Chap, VIII]
and Warfare
127
wise, For, on the basis of the law of nations and of war, it is right that
the regulations of war be observed; and a ruler who has undertaken a
war thus obligates both himself and his subjects," [58']
Hence I hold that if a prisoner is put on parole, under pledge and
promise not to escape and to return, he is bound to keep his promise
and to pay a ransom, either fixed and determined, or even one to be
settled by referees, if no other agreement is reached between the parties,
as Baldus* says and particularly in cases where, according to him,
excessive cruelty is not in prospect.
And it is in the light of the above stated distinction that we should
judge of the decision of Fulgosius (cited by Jason ) in an actual case
touching a physician who was captured by Germans, and who, after
arranging his bond and the price of his ransom at a thousand gold pieces,
was dismissed on parole to go to Bologna to secure the funds. The
decision was that he was not bound to return, or to pay the money.
Now if those Germans were brigands and persons with whom there was
no war, the verdict was sound; but otherwise (supposing them to have
been bona fide enemies) the decision was given with an eye to the
purse, and not to honesty and right.
6 And although the glossator and Doctors on Digest II. xiv. 5 and
IV. iii. I, 3, declare that the commanding officer must keep faith, but
that the case is different with the common soldier (which conflicts with
Cicero's above quoted comment : If individuals, under stress of circum-
stances, have made a promise to the enemy, faith must be kept on that
point'), I still think that a distinction may be drawn.
For (i) the soldier promised something to his own loss, and in
7 accordance with the law of war; then he should keep faith; or (2) he
promised something to the disadvantage of the state without reference
to the accustomed usage of war; then he will not be bound. For his
obligation to the state will be stronger than to his personal word.
Accordingly, when the commanders of the French at the sur-
render of Carignano had exacted from Pirro Colonna and the German
and Spanish troops (who after a long siege had been obliged to yield
8 that stronghold because of lack of food) a promise and perhaps an oath
that during the whole continuance of that war they would not render
service to the Emperor, although previously they were bound to this
on the score of fidelity and the military oath; it was ruled that this
second oath was not valid, because it was very much out of harmony
with the practice of war, d and because the binding force of the earlier
oath was superior to it. e
I was consulted about another question also, when I was at
Brussels at the court of His Highness, the King of Spain. The com-
mander of a troop of Spanish horse (whom they call 'captain 5 ), just as
the signal for battle was given, met one of the men of his troop on foot
a See his state-
ment more at
length, IX. iii,
tit. An captus
in duello.
* Consilia, II.
358, at end.
xiv. 5.
d See gloss on
Sext. II. xi. s,
with comment
by the Doctois
there.
Decretals, II.
xxiv. 19;
Felinus at
length on
D&yefals, I. iii,
19, col. 5,
ampl. 2.
128
A Treatise on Military Matters
[Part IV
14, 1
Z)fg.XLIV.
vii. 2, at end.
32, where all
comment.
6 -Dig. XIII, vi.
*0n Dig. XIII.
vi. 13, i,
reading this
paragraph in
connexion
with the open-
ing words of
the law.
and rather fully armed. And as the man complained that a few days
before he had lost his horse in battle, and for that reason was not able
to take part in the impending struggle, the captain ordered that he
mount one of his horses and attend 1 him, as he was himself suffering
from fever and could scarce keep his seat in the saddle. [59]
But, mounting the horse, the soldier turned off in another direc-
tion, and during the pursuit of the enemy he happened upon their
commander, whom he captured and turned over to his own and the
army's chief, receiving from the latter twenty thousand pieces of gold.
The captain claimed that a part of the ransom money was owed to him,
because the soldier had fought from his horse, and otherwise would not
have taken part in the battle.
I argued that the captain's claim had the support of justice, which 9
in a law case is of first moment, 81 and a thing which the judge should
observe with the greatest care b (and this applies particularly among 10
soldiers, whose disputes are settled on the basis of merit and fairness).
From this point of view we are told that, beyond mere formal agree-
ment, a person is bound to the extent of the moral claim of each party
upon the other, Hence also in such a case the judge will grant relief,
even though a person is unable to bring action. Such claim to fairness
is manifest in the present matter. 3
Again, I said that it appeared that action might be based on
the fact of the loan. For since I loaned the horse to you on condition
that you follow me and that I be better attended and defended a
loan which I perhaps should not have made otherwise if you secure
any gain from my property, or on account of it, you should reim-
burse me. e
Further, I said that action could be based on implied contract;
for the agreement that you follow me involves a legal obligation, as the
jurisconsult says of a similar case in Digest, XIX, v, 15. Or action is
brought even for wrong intent, as is also said there.
And especially close in its application to this case is the passage in
Digest, XIX. v. 20, near the beginning, where it is stated that if I n
entrust to you for trial some horses that are for sale, and, mounted
upon these, you enter a race and win, you have won for me and not for
yourself, and consequently you pay me what you gained by the trans-
action.
Now this soldier had secured the horse on the condition that he
attend 2 the captain; hence in going off in another direction he was
guilty of wrong intent. Accordingly, he has no claim upon the gain
secured through the use of the horse, even though he was responsible
for injury to the animal. So Bartolus; 1 and Baldus, too, comments to 12
this effect on that same passage. The captain also quoted army usage,
1 [For committaretw read comitaretur.'j:*.] * [For cmittantw read comitaretw. TR.]
Chap. VIII]
and Warfare
129
in accordance with which a person who loans a horse is made a sharer
in the gain that accrues.
On my departure from the court, this case was still undecided.
Later I learned that judgement was given against the captain
whether justly or not, it is not now the time to consider. We must
assume, however, that the person who acted as judge was moved by
considerations of reason and law.
I raise a further question : Some comrades-in-arms made an agree-
ment among themselves to share with one another whatever they
13 might acquire (this sort of compact being lawful 1 ). Thus they took
prisoner a certain provincial, who gave a bond, agreeing to pay two
hundred crowns. One of the partners sold out his interest for cash at a
lower rate to another of the comrades-in-arms. Later the commanding
officer ordered that this prisoner be allowed [59'] to go scot-free.
It is queried whether the soldier should be refunded the money
by his comrade-in-arms. The verdict is that he should so recover,
according to Digest, XIX. i. 50, where Bartolus comments. So Baldus,
14 on Code IV. xlviii. 6, b who says that if a consideration becomes no
consideration, payment is reclaimed.
15 Once again I query: A certain state was pillaged by permission
of the commanding general. It happened that a standard-bearer
entered a monastery with some of his comrades-in-arms, and plundered
it with military licence. Now there was hidden in that monastery, in
some apartment or bedroom, a certain noble; and, before this man could
fall into the hands of the standard-bearer, or the latter could get into
the room because the key was missing, he was taken prisoner by a
captain, who also had entered the monastery, and with previous informa-
tion regarding the presence of that noble from a servant of the latter.
The question is: To whom does the prisoner belong to the
standard-bearer or to the captain f And (disregarding any considera-
tion of the immunity of the church, of which it would be vain to speak,
in view of lax discipline and contempt for religion) it appeared that a
verdict should be rendered in favour of the standard-bearer, who was
first to enter the monastery, and to attempt to enter the room, and
who already in intent had captured and secured possession of the
prisoner therein confined. This is supported by Digest, IV. vi. 9, near
the end ('for it makes no difference whether a person is confined by
walls or by shackles'). So Digest, XLI. iL i, 21 ('because it is not
essential to take possession by bodily contact, for this can be accomp-
lished even by sight and intent'); and there is a still stronger passage
16 under the same title. Further, it makes for the case of the standard-
bearer that, being in possession of the container, i.e. the monastery,
he appears to be possessor also of the things contained therein.*
On Digest XLI. ii. 30, near the beginning (a passage, moreover,
1569.64 S
B According to
Baldus, Con-
silia, II. 358.
t Words sed
pone.
* M., Law 3,
13-
130
A Treatise on Military Matters
[Part IV
b zg.XLLii.
55, word sum-
mam] Dig.
XLI, ii. 3, at
the beginning,
a 0n Dig. XLI.
11.30.
iii. 30.
* At the begin-
ning, no. 27.
* Ibid., no. 33.
* Words gutf
zw zwfcraf ,
* On Code VI.
ii. ii.
i Dig. XXIII.
iii. 9, words
quid enim;
Dig. XVIII. i.
74-
ii, i, at the
beginning, 4th
main question.
xii.4.2i,4[H.
xvii. 4. 21, 4],
which, on the face of it, strongly supports the other view; and it was for
this same opposing view that judgement was rendered, on the basis of
Digest, XLI. i. 5, near the beginning*) Paolo di Castro declares that 17
even in the case of a wild beast that has been wounded and pursued by
the person who wounded it, many a chance may intervene to prevent
its capture by the hunter, No wonder, then, that if another person 18
succeeds first in capturing it, it becomes the property of the latter. b
Moreover, we cannot by intent acquire a thing which is neither seen
with the eyes nor touched by the body.
In regard to the citations in support of the first-mentioned view,
rebuttal is offered. For Digest, IV, vi. 9 has to do with a person who is
cornered and confined, not with a person in hiding; and Digest, XLI.
ii. i, 21, according to the view of Sabinus (which is generally accepted),
looks to the contrary, as also does Digest, XLI. ii. 30. And while 19
what Paoli di Castro there d states may be true, namely that he who
possesses a house is not thereby counted to possess the pillars and posts
and tiles of the house, this remark of his has a different bearing; 6 but
none the less are the words and sense of Digest, XLL ii. 30 inherently
valid, to the effect [60] that he who possesses a house or a ship does not
thereby possess all that therein is.
Yet Alexander, on Digest, XLII. ii. 3,' following Bartolus there,
interprets that passage otherwise; and he is followed by Jason, 8 who
quotes Digest, XXIII, iii. 9, 2, h which had previously been cited by
Baldus on this point. 1 But in my judgement we may solve as follows
though Jason there boggles at such an explanation: (i) there is consent
on the part of the person who was in possession and gives up a thing;
and then inspection and actual sight are sufficient, and there is no need 20
of actual corporeal contact: 1 (2) consent is lacking on the part of the
person in possession, or else the thing was possessed by no one; then
real and actual touch is required. So Bartolus. k Jason 1 offers a further
explanation that in the case of things requiring actual seizure, mere
seizing of the container is not sufficient.
Furthermore, the above-mentioned captain cited as in his favour
the military usage whereby, though a soldier entering a private house
is allowed to have acquired everything present therein, the rule is
different in the case of churches and monasteries perhaps because of
the many different domiciles which they contain, Here, however, is a
difference of circumstance rather than of equity.
And it would be more just and righteous by far to refrain alto- 21
gether from entering and plundering holy places. For sacrilege is
committed as well by stealing secular things in a church as it is by
appropriating holy things. 1 *
For if the Goths, a barbarous and rude people and infidels to 22
boot gave orders at the capture and sack of Rome that no harm should
Chap. VIII]
and Warfare
be done to the church of St Peter and St. Paul or to aught therein
found (as St. Augustine* records), how much more ought Christian
soldiers to be reverent and respectful in regard to things sacred ? And
how much more vigilant and watchful in this matter should commanders
be all the more so because this sort of plundering and sacking of cities
is in large measure unwarranted ?
23 For cities ought not to be plundered except for some great wrong
and crime in which the whole population (or at any rate the greater
part) has shared. And this fact must be emphasized in regard to those
towns which the enemy take from us by surprise (sometimes even
through the sloth and inattention of our own commanders and soldiers),
supposing that we take them again by force from the enemy. For people
of this sort cannot be called 'rebels', as Bartolus points out*
Commanders of armies, therefore, should beware lest, 1 in en-
deavouring to show favour to the soldiers and to secure their goodwill,
they fall under the displeasure of God, Of this something had been
said above in another place.
1 [For nedum read ne, dum.1n.]
* On the City of
God, I. i, if I
rightly recall.
b Tit. Qui sint
on word rebel-
landO) words
Domino quae-
dam stint civi-
totes.
[60']
HERE BEGINS
THE FIFTH PART OF THE WORK
CHAPTER I
ON TRUCES
SYNOPSIS
1 Treuga ('truce') and treugare ( to make a
truce') are foreign terms.
2 Truce; what it is.
3 Whether an army commander may law-
fully make a truce.
TRUCES intervene in the course of war, being designated in these
days as treugae. This word, however, is unusual, and not Latin at all.
But the canon law uses it ; a and the Archdeacon 1 * employed not only the
noun treuga, but also the verb treugare. Hence also he applied the
1 name treugarius to one who makes a truce. c Yet these are foreign
expressions.
Further, I do not think that we can accept the distinction made
by a gloss d that treuga is a truce for a long period, and indutiae a truce
for a short time. For I have known treuga to be applied to a truce
of short duration also; and in these days they so designate any sort of
truce just as the ancients applied the name indutiae to any kind
whatsoever.
2 In the first place, I ask then: What is a truce? And Digest,
XLIX. xv. 19, I, says that it is a cessation of hostilities for a brief
period.
3 In the second place, I query whether it is permissible for the
commander of an army to make a truce. And in case he is himself a
sovereign, no one could doubt his right; moreover, if another has been
put in command of an army by the sovereign, [61] Bartolus e declared
that the former may make a truce, but not a peace.
But Paolo di Castro on the same passage says that the appointee
has the right to do neither thing, unless he has been granted full juris-
diction. This is the opinion of the Doctors generally, though (with the
tacit approval of Alexander) 1 Fulgosius there 5 adds the qualification:
'unless it be a truce for a short period 5 .
Thus we read that between Greek generals truces were often
made by the commanders for two or three days in order to bury the
slain. And here the opinion of Bartolus would hold, truces being made
for a short period. 11
Also in these wars of ours we are witnesses of the fact that in the
year 1540 the Marquis del Vasto made a month's truce with the Comte
d'Enghien, commander of the French. And again, Ferrante di Gon-
zaga made another truce, also for a month, with the Sieur de Brissac
135
Title and text
af Decretals, I.
b On Decretum
II. xxiv. 3, 25,
c Ibid.
On Dig, II.
xiv. 5.
On Dig. II.
xiv. 5.
tlbid.
Ibid.
* Dig. XLIX,
xv. 19, i.
*0n Dig. II.
xiv. 5, last col.,
limit. 3.
136
A Treatise on Military Matters
[Part V
in the year 1553, unless I mistake. Possibly, however, these leaders had
unusually full jurisdiction, in which case, as I have pointed out, they
were within their rights; so Jason, a following others.
b On Decretum
II. xxiv. 3. 25.
c On Decretals
II. i. 13, no. 10.
Ibid.
133].
CHAPTER II
WHETHER A TRUCE HAS MORE IN COMMON WITH WAR OR WITH PEACE
SYNOPSIS
1 Whether a truce more nearly approxi-
mates peace or war.
2 Peace not the same as a truce.
3 Oblivion results from long lapse of time.
4 Tax receipts suffer from even a rumour of
war.
I ASK next with what a truce has more in common with peace i
or with war ? The Archdeacon* says that a truce is peace, following
Hostiensis; and Panormitanus declares that, when made for a con-
siderable period, a truce may be called peace. This he applies 4 to a
question regarding a person who hired a cavalry commander for the
period of a war, or even until peace should come; and he queries
whether the engagement is to be counted as terminated by a truce of
this sort (a question argued at an earlier time by Giovanni d ? Andrea),
and concludes that it was so terminated; hence the employer was not
responsible for wages during the time of the truce.
However, in a case where the contract ran 'until peace comes', I
should myself incline to the view that the decision ought to be
reversed. For peace and truce are not identical, as I shall shortly show;
and the wording of contracts should be interpreted strictly and exactly,
according to the rules in common use in this connexion,
Further, I should think that it ought to be determined whether
the employer notified the officer the moment the truce was made, and
dismissed him ; or whether he retained him. For men are mustered out
and dismissed, when their service as soldiers is no longer required. 6 [61']
On the main question, it is customary to cite the passage in
Decretals^ II. i. 13, where it seems to be held that a truce is peace; for
it is said there that he who has broken a truce has done violence to a
peace pact. And this view is indicated also in Decretum, II. xxiv. 3, 25.
Virgil, 1 too, speaks of a truce as peace when he says :
Twelve were the days agreed, and in the ensuing peace . . .
The contrary view is expressed by a gloss and the Doctors on Decretals
II. 1.21.
Chap. II]
and Warfare
137
beginning:
Praemissafacti
serie*
eCf.jDiff.XLI.
I like better the statement of Petrus de Ancharano* to the effect
that there are three things, no one of which is identical with another,
2 namely, war, truce, and peace. Felinus* goes deeply into this matter,
reaching the conclusion that a truce is more nearly akin to war than \? Deretals
to peace. 7 ILl ' 21 '
This I believe to be correct in the case of a genuine truce, i.e.
(according to its definition for which see Digest, XLIX. xv. 19, i)
one which is made for a short period. But in regard to a truce of long
duration (such as was made in the year I538 1 at Nice, between the
Emperor Charles and Francis, King of the French, for a period often
years), I should fancy that this amounted to a peace, and that at its
3 expiration a new proclamation and declaration of war would be
required. For after so great a lapse of time we assume that not only
the parties to the war but also the provincials have forgotten it. c
(However, the contrary might be argued on the ground that not
even in view of a long lapse of time is forgetfulness to be taken for
granted when an offence is noteworthy and serious, according to a
passage which is usually cited as unique in Decretals, V. xxxix. 32. But
this refers simply to forgetting, and says nothing often years.)
Nor in the case of so long a truce should I think valid the state-
4 ment of de Ancharano d that in time of truce the same indulgence should
be granted a tax-farmer on account of war as would be granted him in
time of actual warfare.- But the case would be otherwise, if the truce
were of moderate length. (Here most aptly applies the remark of
Cicero in. his speech De Imperio On. Pompei? 'In other matters', says he, [ 15 j.
'when disaster arrives, then it is that loss is sustained; but in regard to
the revenues, not merely the arrival of trouble, but even the fear of
it, brings disaster 7 .) See also below. 1 no.^'^ 1 '
1 [June 18. It guaranteed to each, for ten years, the possession of that property which he held
at the time of the truce's going into effect. ED J
1569.64
i 3 8
A Treatise on Military Matters
[PartV
a On Decretum
II. xxiv. 3. 25,
no. 4.
* On Decretals
II. xxiv. 29, el.
3. So Giovanni
d'Andrea in
addit, to
Durandus, on
nibr. De
Treuga et
Pace ; and
Antonio de
Butrio, on
Decretals, II.
xxiv. 2.
*De Confedera-
tions et Pace,
etc., qu- 1 6.
iii, 21 ; and
Jason, Con-
silia, II. 170,
262.
f -D* Privilegiis
Pads, at the
beginning no.
117.
CHAPTER III
ON VARIOUS QUESTIONS ARISING IN CONNEXION WITH TRUCES
SYNOPSIS
1 Whether a truce should be kept with
one who violates it,
2 The covenant-breaker should not have a
status more favourable than that of
one who observes it,
3 When equal wrongs are cancelled by
retaliation,
4 Faith need not be kept with a covenant-
breaker.
5 There should be no trifling in regard to
covenants and pacts. [62]
6 Possession is acquired neither by intent
alone nor by touch alone.
7 A few soldiers found in a place are not
assumed to have acquired that place
by right of war,
8 Whether a village is included when its
state is captured in war, 1
9 Actual fact is of more importance than
legal considerations in questions having
to do with acquisition by armed force,
10 Why possession rests more on the fact
of touch than of intent.
11 An oath of allegiance does not entail
transfer or acquisition of a thing.
12 Acknowledgement on the part of a
vassal does not constitute possession
for the lord.
13 Vassalage to another does not transfer
possession with loss to a previous lord,
if he too has possession.
14 Rights of lords not dependent upon
subjects.
15 A lord does not lose possession of a sub-
ject of his who is held under restraint
by another.
1 6 The inception of capture should be
looked into.
17 If a person has been captured in time of
peace, even through the pretended
courtesy of another, who knew that
war would be renewed, he cannot be
regarded as lawfully captured.
1 8 Whether 'from' (a, ab) is used so as to
include the terminus or not.
19 The exact time is regarded.
20 Absurdity is altogether to be avoided.
21 Whether a new declaration of war is
required on the expiration of a truce.
22 Baldus inconsistent in his decisions.
I NOW ask whether, when a truce has been violated by one party, ;
it is permissible for the other party to do likewise. Vincent of Spain,
an early Doctor, says that it is not permissible; and he is reported and
followed by the Archdeacon. 5 The same position is taken by Giovanni
d'Andrea and Antonio de Butrio, b the latter of whom Martinus
Laudensis cites in support of this view, without comment, as is his
usual custom in treating such matters. On this side Alexander and
Jason d range themselves.
This verdict would be on a stronger footing, if it were agreed in
the terms of the compact not to break the truce, even in case of some
new offence a provision which I note was incorporated in that ten-
year truce made at Nice. On this matter see Bartholomaeus Socinus, 6
who is cited by Corsetti, 1 [62'] the latter discussing the question in detail.
Otherwise, I have held for the contrary view, on the authority of
1 [But see text below under this number, and compare no. 15 there.-TR,]
Chap. Ill]
and Warfare
139
Joannes of Imola, a who took that position which is supported at greater
length by Panormitanus b and the Archbishop of Florence, c And I regard
2 this view as particularly applicable in the case of long-continued truces
(not to give a greater advantage to the faithless and the covenant-
breaker than to the conscientious and the honourable; and because it
would be a bad procedure in war if a person gave his attention to
defence merely, while the other party was plundering right and left
especially so, if the enemy's country were very close). This Saliceto d
weighs and accepts.
(However, the decision of Vincent might apply to a truce of a few
hours, or perhaps days but, even so, as a matter of courtesy rather than
of actual right. Here the example set by Scipio Africanus the Elder fits
admirably. For after the Carthaginians in time of truce had attacked
a Roman fleet that had been demoralized by a severe storm, before the
expiration of that same truce fortune threw into the hands of Africanus
some ambassadors of the Carthaginians. Whereupon premising 2 that
the Carthaginians had done violence not only to the integrity of the
truce, but also to the law of nations itself, still he said that he would
do nothing to the discredit of Roman institutions or his own character;
and so he allowed the ambassadors to go free. So Livy. e )
Moreover, the arguments in support of the other view are very
weak. Thus, as for the statement of the Archdeacon that though you
burn my house, I may not likewise burn yours, and though you are
guilty of betrayal, I may not follow suit these principles apply among
3 civilians, with whom crimes and wrongs are not cancelled by retalia-
tion, 1 whereas in the above case there should be place for the rule* that
4 faith need not be kept with a covenant-breaker. For he who breaks
the law appeals in vain to its protection; and we are told h that he who
inflicts injury as a result of a newly arisen provocation is not counted
guilty of breaking the peace.
A second suggestion, to the effect that the party that is injured
can inflict punishment after the truce has run out, is neither honour-
able nor safe, especially if the truce be of long duration.
And Corneo 1 says that the rule of Vincent the Spaniard ought to be
modified so as to apply to activity in general, and not merely to the
activity pertaining to matters of war; otherwise, says he, it would
be observed nowhere at all. It is fair, therefore, that he who wishes it
observed towards himself should also himself observe it and this rule
applies among civilians too.
5 It is not seemly, either, to trifle with pacts and covenants, as did
that Spartan (was it Cleomenes, or some other ?) who, after arranging
a truce for thirty days with the enemy, devastated the country of the
0Z)zg.XLV.
i. 96.'
b On Decretals
I. xxxiv. i,
c Swnwa, Pt.
Ill, tit. IV,
chap, ii, i,
towards end.
1. 2, COl. 2,
words si aidem
non tantum se
defendit.
XXX[xxiv.
xoffj.
21 ; Decretals,
II.xxiv.2j
Sext, V. xii,
reg* 75-
42, under no.
8.
1 [For quod read qui. TR.]
3 [For quod read ywi. TR.]
2 For Praefeius read Praefatus. T
140
A Treatise on Military Matters
[Part V
*[Cf. Cicero,
On Duties, I.
33; Plutarch,
Apopktheg-
wata Laconica,
p, 223 A ft.]
b On Dig. I, iii.
29, and Dig.
XIX. 1.39.
On Dig.
XLVII. iv, i,
at the be-
ginning,
d Dig. XLL ii.
3, at the be-
ginning, and 8.
e So indicated
by Dig. XLL
ii.i8,4-
1 On Dig.
XLIII. xxvi.
15, I-
latter by night, alleging that the agreement covered the days, but not
the nights. [63] a
Here belongs a case that came under my observation. Arrange-
ment for a truce had been perfected; and before the date of making it
public, the general of one party was given the information, but the
other was not. The terms provided that both parties refrain from
warfare while the truce was on, with the understanding that things
remain meanwhile in unchanged status, i.e. whatever they should
possess and occupy at that time they should still possess and occupy.
Now, the first-mentioned commander distributed many of his soldiers
(even by twos and threes) in numerous villages and towns; and as these
men were found therein at the moment the truce was announced, they
claimed that these places belonged to them by right of war and of that
agreement.
In point of law, however, this may not have been true; for perhaps
it was not permissible to take advantage of such a provision. See what
is said of the town official who had received private information that
the price of wheat or even the exchange rate was to be lowered, and
at the proper moment disposed of all his stock, as described by
Bartolus.* Again, note what Bartolus says in reference to a city prefect,
all of whose debts it is customary for the Emperor to pay at his corona-
tion; and the man, knowing that the next coronation is near, sets him-
self to piling up a huge debt. Bartolus there makes reference also to
those who in war hasten to consummate deeds of wickedness in the
anticipation of the early signing of peace.
And, again, the presence of some few soldiers was not sufficient
for the acquisition of those places. For possession is not acquired 6
either by intent alone or by contact alone. a Moreover, so few men 7
could not acquire those places, dispossessing the former owner and
possessor. 6 And it might be said that the few soldiers, scattered through
those places, were themselves held, rather than that they were holding
something. So Bartolus 1 ruled in a similar case; and this matter I shall
treat more fully later.
I witnessed an argument regarding another case also. In this
Piedmontese or Cisalpine home district of ours, the French were in
possession of some strongly garrisoned places, among which were even
metropolitan cities, such as Casale and Turin. Then, in accordance
with a compact and truces often renewed, it was agreed that both
parties should retain the same possessions as they had held in the war.
But many villages and hamlets had taken orders from both parties
during that time, and had supported both with service and contribu-
tions; moreover, many had received from leaders on both sides cre-
dentials (called 'safe-conducts') by which they were restored under their
protection; and some of them had even taken an oath of allegiance to
Chap. Ill]
and Warfare
141
8 both sides. Hence the question was raised: to which party did those
hamlets and villages belong ?
And that villages which are under protection belong to the pro-
tector seems the implication of a passage in Digest, L, i. 30; in fact,
even that they belong to the one to which they are nearer might be
argued from Digest, XLI. i. 56. [63'] Or, at any rate, since these places
took orders 1 from both parties in the war, by the terms of the compact
it might seem that they remained common property.*
9 It was my decision that, in acquisition which is based directly
on the law of nations, the actual should be regarded rather than the
technical; hence actual and firm seizure is required. So Digest, XLI.
ii. i, near the beginning, where all comment, particularly Jason, who
10 considers the question why possession is determined more by contact
than by intent. There is additional support in the same law, I, with
gloss, b and in Digest, IV. vi. 19, where it is stated that possession is
chiefly a matter of actual fact. And further discussion may be found
in Digest, XLI, ii. 3, near the beginning.
Therefore, to mate it possible to say that those hamlets were
acquired by the law of nations and of war (assuming also justice on the
part of those who press the war a point regarding which this is not the
place to speak), real and actual seizure is required. And from the
acquisition or occupation of one part, the acquisition of a remaining
unoccupied part does not result.
11 And, to pass to another point, possession is not secured to the
enemy nor wrested from the lord through an oath of allegiance (so
12 Innocent, 4 who is followed by Baldus 6 ) just as, through allegiance
offered by a vassal, a direct right is not established for the person to
whom the tender is made. So Odofredus/ who is followed by Baldus. 8
Compare also de Afflictis there,* and the comments of the canonists. 1
So, too, Aretinus. J (The glossator* ventures the stronger statement that
even if a vassal surrenders a feudal holding, he does not impair the lord's
legal right of possession. But this would hardly hold in a discussion
about war; for there naturally fact is stressed. See also what the
Doctors say on Digest XLI. ii. 21, 3.)
13 Again, possession is not gained because of the above-mentioned
payments and services, whether they were in goods or in person. For
although from obedience to orders (particularly if they call for active
service) there accrues a sort of acquisition of jurisdiction, 1 still, if the
original lord meanwhile holds possession, his rights of ownership and
possession are not interrupted. See Digest, XLI. ii. 32, I. (On that
passage Bartolus notes an important distinction: (i) the person by
whose instrumentality I have possession really and actually transfers
possession to another, and then I lose it; (2) he makes a transfer by
1 [For paterent probably forwent should be read ; cf . no. 7. TR.
II
a According to
H^.XLIII.
xvii. 3.
b Words earn
rem.
Dig. XLI, ii.
i8,atend.
xxxvii. 2.
* On Code III,
xxxiv. 2, no.
5-
VnCodell.
iii. 20.
t On Feuds IL.
Ii. i, no. 13.
h Ibid., no, 59.
i On Decretals
II. ii. 7 (so
Panormi-
taims) ; and
On Decretals
II. xxiv. 22,
following the
text there, and
Decretals, II.
xiii, 12, el. i.
J Consilium 14,
col. 4.
ix. i, at end,
and Code,
VIII. vi. i.
1 According to
Innocent on
Decretals IL
xiii. 12,
reported and
followed by
Balduson
Code ILL
xxxiv. 2, no.
54-
142
A Treatise on Military Matters
[PaitV
Cf. Dig. XIII.
vi.5,Si5;Z)fe.
XLI.ii. 3 , 5 .
* On Code VI.
i. i, col. 4.
c Ibid., words
plus dico.
ii. 3, at the
* On Code III.
XXXIV. 2,
no. 58, citing
* On Dig. IV.
iv. 3, 2, near
end.
* According to
xv. 12, at the
legal fiction, 1 and then I do not,) Now if the first owner retains
possession, it is impossible for another to have it, [64] a
And this applies all the more, in view of the fact that the above-
mentioned activities were of a promiscuous and general character,
having to do with the persons of the townspeople themselves rather
than with the towns proper; hence they do not necessarily involve
occupation of the places. Accordingly, transfer of possession is not
established through such activities, and there will be application for
the statement of Innocent, quoted by Baldus on Code III, xxxiv. 2,
no. 15, where he says that actions of a promiscuous, general, and irregu-
lar character do not establish possession.
There is further support in the statement of Baldus b that the I4 .
rights of lords are not affected by the seizure of subjects who are
held against their will. On that ground he assumes that if any sub- 15
ject against his will is held by another, and the man meanwhile calls
himself my subject and so comports himself to the best of his ability,
I do not lose the right of possession which I exercise over him,
It is true that Baldus here is speaking of civil possession. But, in
the case of this sort of seizure also, hamlets do not go with the
cities. So Bartolus and others* state, and Baldus 6 also; compare too
Digest, XLl.il 1 8, 4.
Yet these disputes never reached a legal settlement. For there
was no judge available, and the law of arms prevailed.
No better or stronger was the case of the commander of a certain
fortress, who requested and even forced a nobleman passing that way
to remain with him that evening, which was a time of truce, In the
night that followed, the commander's party broke the truce (which
he all along knew would happen), and in the morning he detained the
nobleman, as being captured by right of war, extorting from him a
bond for a thousand crowns,
[I thus judge] because the initial point of capture must be looked 16
into and considered (cf. Digest, IV. iv. 3, 2, where the glossator and
Bartolus comment. This applies particularly when the end is neces-
sarily determined from the beginning, as the Doctors there declare,
especially Albericus 1 ). So I hold that if the nobleman had remained
that night of his own accord in the fortress, he might justly have been
taken prisoner. 8
But since he remained through the trickery of the commander and
against his will, in truth it ought to be said that he was arrested in
the evening and, therefore, in time of truce. For a person kept within [17]
four walls is subjected to forced imprisonment, as well as one who is
actually bound ; h and even that man is counted 'imprisoned' who may
not depart at his pleasure, as Angelus 1 held.
1 [Foifictae readjfcte. TR,]
Chap. Ill]
and Warfare
143
Yet we might say with Baldus:
While thus she spake, Ulysses cast 1 the ship adrift.
For that 2 nobleman, who was himself a lawyer, cited the laws which in
fact supported his contention; but the other, being a soldier, main-
tained his case by force of arms.
Here another question arises. Beyond the mountains, on the 5th of
February, in the year 1555, as I recall, a five-year truce was made by
their Royal Highnesses Philip of Spain 3 and Henry of France. On that
same day, on this side of the mountains Marshal Brissac, [64'] commander
of the French, took Vignale, where there was a garrison of Spaniards.
Now it had been specified in the truce that from the above-mentioned
date there should be a suspension of war, &c. Hence the question was
raised whether that day belonged to the truce with the consequence
that the garrison could not be held, being taken outside the period
of war.
1 8 For, in case of doubt, the words 'from this day' might be under-
stood either as inclusive or as exclusive; and Cino, a who considers this
question in his comment (see Baldus, too, on the same passage), says
that if the subject-matter is favourable, they will have the inclusive
sense; but the exclusive sense, if the subject-matter is unfavourable.
Now a truce is more favourable than war; and retention is more
favourable than seizure. This same question is taken up by Bartolus b
at greater length. And, as regards time, he says that if the terminus
can be included, the interpretation will be inclusive.
19 My opinion is that the instant of time should be emphasized. For
in matters which are instantaneous, this is looked into carefully (so
Baldus ). And this is particularly applicable to the present case. For
it is unreasonable that acts of war should still continue after a truce is
effected; and equally unreasonable to say, before the truce is made or
even while it is in the making, that it is not a time of war, and that it is not
permissible to do everything that falls within the scope of war. And
it is not likely that the parties meant to include in the truce time that
had already elapsed. Consequently, whatever happened before the
truce, whether disaster or success, should be ascribed to war and
settled fact. 4
This conclusion is supported by the statement of Bartolus d that
we should take the view which rules out an unreasonable interpretation.
1 [For solebat read solvebat. See Ovid, Remedy for Love, 285, the original referring to the decisive
act by which Ulysses cut short the blandishments of Dree. TR.]
* For ittae read ille TR.]
3 [Belli's sentence may seem to imply that Philip was king of Spain, which is not quite exact.
At the time of the signing of this truce, Philip was only king of England, and he is so designated in
the truce. He became king of Spain in the autumn of the same year, 1555. The truce was between
Henry on the one hand, and the Emperor (Charles V) and Philip, king of England, on the other.
E D ] 4 [Reading/ado for/ato. TR.]
* On Code V.
iv. 21.
b On Dig.
XXXII. xxxv,
c On Code
VI.xlii.6,last
col., and On
Feuds, L vi,
2-
a On Digest
XXXII. xxxv,
144
A Treatise on Military Matters
[Part V
a On Code V. iv,
21, last words.
* ConsUia, I.
457, begin-
ning: Reveren-
dus pater ;
repeated in an
incomplete
chapter, Con-
silia, V. 412.
Col. 3, words
wo quid de
d Words seu
quam koram.
e Tit. DePace
Constantiae f
9, loco ult.
f Citing Dig. II.
xiv. 27, i.
B Decisiones,
191, words
dfc ergo.
xiv. 27, i.
i On Dig.
XXIX. ii. 77,
last words.
Such was the position also of Baldus, a who says that the words spoken
will be interpreted according to the dictates of sound reason and the
intent of the contracting parties. And the illogical is by all means to 2 o
be avoided, as Baldus again remarked b in a discussion of this same subject.
Since, therefore, on that day it was permissible before the con-
clusion of the truce to engage in warlike acts, whereas after the
conclusion of the same this was no longer allowable, we necessarily
come back to the 'instant which' in the delimitation of peace and for
the simple reason that whatever is done is conditioned by the point of 21
time, as Baldus said on Code IV. xxi, 17. And on Digest XXVITL. vi.
16, i, d he adds that we should make note of this, for he had seen actual
application of the principle.
I raise the further question whether, after the time of a truce has
run out, a new proclamation or declaration of war is required. (And
Baldus 6 makes the distinction : ( i) A war had not been declared or begun,
though perhaps it was impending and the parties were preparing, and
then a declaration is required; for lapse of time (he says) does not
effect a removal or cancellation of obligation; or (2) the war was
already in progress, and then a new declaration is not necessary. 1 ) [65]
Above I argued that this may be conditioned: 'unless the truce
be for a long period, even more than ten years'. However, Guy de la 22
Pape g holds without qualification that a declaration is not required.
And Angelus* says that at the expiration of a truce we revert to the
status that was interrupted by it.
Yet Baldus (vacillating as he is on every question) states elsewhere 1
that if parties who are not at war make a truce, it seems tacitly agreed
between them that they will be at war after the lapse of the truce. This
I do not believe to be correct; and perhaps the safer plan is to accept
the verdict of Angelus as it stands and without qualification.
HERE BEGINS
THE SIXTH PART OF THE WORK
1569-64
CHAPTER I
ON VARIOUS QUESTIONS PERTAINING TO WAR
[65'] SYNOPSIS
1 Unlawful articles of a partnership are
not binding.
2 An unlawful partnership is not valid.
3 Whether a partner shares with another
what he secures from a second partner-
ship.
4 A partnership should be faithfully
carried out.
5 The immediate and not the remote
cause is to be stressed; so No. 8, second
part.
6 How we should interpret, when it is
agreed 'to hold friends as friends, and
enemies as enemies'.
7 One who buys from the enemy of his ally
and pays the price agreed is not
counted to have broken the covenant.
8 Whether the expressions ex 9 ob, and
propter imply an immediate cause, or
even one of the second degree.
9 The meaning of e fatal wound'.
10. Whether there should be remission of
payment on account of war.
1 1 Whether there should be remission for a
lessee in view of a moderate loss; and
how this is to be interpreted,
12 Whether there should be remission of
rent on account of war.
13 A loss sustained through a person's own
fault must be borne by himself.
14 Whether remission should be made in
favour of questuaries on account of
war.
15 Whether the prospect and apprehension
of war justify remission of payment.
To return now to the matter of war proper, I have already noted
above that it is permissible for soldiers to make agreements among
themselves as to securing booty from the enemy and sharing it with one
another. So Baldus. 1
I now ask whether such compacts are valid 1 among brigands (i.e.
persons who are not really enemies), or even among bona fide soldiers
who make an alliance for improper ends, e.g. to plunder the provincials
on their own side, or even those belonging to the enemy but in
violation of a covenant.
t And there is no question that this sort of agreement is not valid,
i according to Digest, XLVI. i. 70, at the end, where it is stated well and
forcefully that a partnership entered into for disgraceful purposes is
void. And the idea is expressed with no less precision in Digest, XVII.
ii. 57 ('there can be no association for dishonourable purposes').
And this is not inconsistent with Cicero's statement* that ^even
brigands have laws which they observe (he adds also that Bardulis, an
Illyrian robber of note, and Viriathus, the Lusitanian, were well spoken
of; and that through fair division of spoils they gained large renown and
greatwealth). For Cicero is talking of facts, and I am speaking of the law.
And since, as I have said, associations for wrongdoing are disgraceful
* [For vdeal read vacant. ED.]
Consilia, II.
358, with cita-
tion of Code,
II. iii. 19.
40]-
148
A Treatise on Military Matters
[Part VI
XVII, ii. 19 at
end, and 20.
* Sec Dig.
XVII. ii, 21
(which follows
next after the
two laws last
cited).
d Summariinn,
Dig. XIX. ii.
19.
i. 19.
* (Law other-
wise cited as:
Sifmtres
essent.)
and revolting (as is stated also in Digest, XVIL ii. 53), a judge will not
concern himself regarding these, nor will action be given on such a basis.
Here arises a question upon which it befell me to render judge- 3
ment. Titius and Seius, two comrades-in-arms, entered into a partner-
ship with regard to whatever they should capture in the sack of a city.
Without informing Seius, Titius made Sempronius his partner.*
Query: How shall things captured be shared ?
It is clear, at any rate, that Sempronius is not a partner of Seius;
for 'the partner of my partner is not my partner'. Consequently Titius,
who took Sempronius into partnership, will share with him whatever
he derives from the partnership with Seius; but the latter will share
nothing with Sempronius. b Thus Sempronius will have half of the share
of Titius.
Moreover, if Titius failed to acquaint Sempronius with regard to
his previous partnership with Seius, I assume that he will be bound to
share with him [66] ad intemse. For it would be unfair, if Titius
acquired something, for him to share with Sempronius merely to the
extent of one-fourth, keeping 1 a half of the gain for himself for 4
partnership should be honoured to the full (cf. Digest, XIX. i. 13, 29,
which has to do with cases in which concealment of facts results in loss;
and on this see gloss ),
But will Titius share with Seius what comes to him from the part-
nership with Sempronius ? It is so implied by the wording of Digest,
XVII. ii. 21 ('but his action will be guaranteed to the partnership');
and such was the view of Baldus. d For he says that the person who
acquires a new partner alone shares with him, whereas whatever he
secures from the latter he shares equally with his original partner. And
this accords with the view of Fulgosius. 6
But I fear that this is not sound. For we seem to be dealing with
a partnership for the securing of gain in one's own person, which, there-
fore, does not cover things secured in other ways. 3 Compare Digest,
XVII. ii. 7 and 8, where Bartolus and Baldus thus sum up: 'In a
partnership entered into without qualification, only personal gains are
to be shared.' And this is supported by Digest, XVIL ii. 52, 5, where
it is stated that partnership in one line of business does not extend to
another. So also by section 6 f of that same law. Yet, as I think, it would 5
be necessary to weigh the words of the contracting parties, and to
reach a verdict according as the terms are loosely or carefully drawn.
In case of doubt, where acquisitions from plunder are to be shared,
I should hold that the gain which accrues from Sempronius is not
derived from plunder, but rather from a business contract giving
prominence to the immediate and proximate ground, and not to the
1 [For Jiabiturus read hatitumm, since it seems to modify enm rather than Tiftw. ED.]
3 [For sore read coire.Tn.] s [For aliundae read aliunde. TR.
Chap. I]
and Warfare
149
early and the remote, on the basis of Digest, XVII. ii. 8, and because
of the reading ex, which has in view an immediate cause. (Whence
Baldus a states that a statute which speaks of a person convicted of (ex)
homicide does not include the instigator,) And there is no difficulty
with Digest, XVII. ii. 21 ; for this should be interpreted to mean that
Titius will guarantee to the partnership the action of the new partner,
i.e. he will guarantee against any loss sustained through the latter's
wrong-doing or carelessness. This is indicated by the laws that follow,
especially 23, near the beginning; and so the glossator and Doctors
there interpret.
A further question: Two rulers make an agreement by which it is
provided that they bind themselves to hold the friends of each as
friends, and the enemies of each as enemies; and that, in defence of
lands possessed by them, they will aid each other, and so make war and
peace. Subsequently one of them buys from some other ruler a city
which, before this compact was made, the latter had taken from that
ally of his. Is he then to be judged to have violated his agreement ?
Paolo di Castro b holds that the agreement has not been broken,
because the pact has to do with lands that were possessed at the time
the agreement was made, and therefore it does not apply to lands lost
before that time. Furthermore, he declares that the man will not be
bound by virtue of his agreement to bear aid to his ally, in case the
latter chooses to undertake war to recover that city, nor will he be
6 bound to count the ruler [66'] who seized it an enemy. For that pro-
vision regarding holding friends as friends and enemies as enemies must
be understood as applying to wars that are unavoidable, not optional,
and to wars that are just and not to those which are unjust; and like-
wise to defensive, and not to offensive operations.^
Consequently, as I have said, the aggressor in that antecedent
7 period before the compact is not to be regarded as an enemy. And on
the basis of the fact that the price in money is paid to him for the city
bought it cannot be claimed that the pact has been violated or that aid
is being supplied to an enemy. So Paolo.
And he also adds there that this third ruler had previously been in
friendly alliance with the purchaser, and that they were old associates.
Thus we fall into argument in a circle. For if I am bound to count
your enemy as my enemy, and you are bound to count my friend as
your friend: in case the same person is your enemy and my friend, the
agreement cannot be carried out because of the conflict; or precedence
will be given to that which is more reasonable.
I pass on to another question. It has been agreed that indemnity
be paid for losses arising from war. Should this agreement be restricted
to the losses due immediately to the destruction of war, or should it
be made to apply also to those which have been occasioned by the war ?
* On Feuds II.
liiLi,52ff.
1 Consitia, L
295 (Visa
superscripto
c Ibid., col. 4.
words $rae-
terea et vasal-
lus.
A Treatise on Military Matters
[Part VI
a On Dig.
XLVII. ix. i,
Dig. XXVII,
Ibid., main
question.
* Dig. XIX. i.
5; andCojfe,
IV.xxxviii.i5,
oppo. 3.
On Dig. IV.
vi. 32.
'Cafe, IV.
xxxvi, sole
law ; Dig. XV.
i, 50, at end.
* Summarium,
Dig. XXXIX.
Digest, XLVII. ix. i, 2, states that a thing is counted as lost in
war, if its loss is occasioned by the war; and to this view the majority
and commonalty of Doctors incline.* Thus Albericus b states that when
a certain nobleman of Savoy, governor of Padua, had his horse wounded
in battle and the animal subsequently died, he was reimbursed for the
loss of the horse on the advice of Ubertinus of Bologna. This, too, is
what Bartolus c says.
It is my opinion that a distinction should be recognized: (i) A loss
is sustained as an actual result of war (i.e. it would not have happened
otherwise), and then a person may be said to suffer that loss as arising
from the war itself, and the agreement to restore and to make good will
apply; or (2) the loss would have occurred in any case, and then I
reverse the decision. This is supported by Digest, XVII. ii. 60, l,
which makes a distinction according as something is done for (in) a
partnership, or because of (propter) it; just as there is differentiation
according as money has been paid to (ex) my interest, or because of
(propter) it. Compare Digest, XV. i. 50, near the end, where Bartolus 8
draws a similar distinction between ob and ex, and between de and
ex, on the basis of the laws which he cites. For, according to the laws
quoted, it is a question of proximate and immediate cause ; so, too, of
the fundamental, not of the incidental.* 1
Yet Albericus says again 6 that if, by the terms of a compact, horses
that are killed in the service must be made good to the soldiers, so, if
a soldier went to Milan under the orders of a contracting party, and
lost his horse in a fire that broke out in a hostelry, [67] he must be
reimbursed, because he is counted as being engaged in the service until
his return. This Albericus repeats on Digest, L. vii. 6, where he states
that he secured such a verdict in an actual case.
But inasmuch as the laws on this subject seem to give different
rulings (for in Digest, XLVII. ix. I, 2, it is stated that it is all one
whether loss follows from war or on account of war, and the same
thing is said also in Digest, XLVII. viii. 4, 13; whereas elsewhere a
sharp differentiation is made according as something happens from a
thing, or on account of it 1 ), the Doctors usually recognize the following
distinction: a contingent circumstance is a necessary consequence of
the original cause, 1 or it is not such a consequence. In the first case, it
takes rank with the original cause; but not so in the second. So
Albericus; 6 and this harmonizes with my distinction above (i.e. accord-
ing as a loss was bound to occur or not).
Elsewhere they contrast subject-matter that calls for suspension of
the common law, and material which does not call for such suspension;
also they distinguish between subject-matter unfavourable and favour-
able. And in connexion with subject-matter unfavourable or calling for
1 [For Principem read principium.Tb.]
Chap, I] and Warfare 1 5 1
suspension of the common law, a thing which happens on account of
war^is not held to arise from it; but when dealing with favourable
subject-matter, we interpret more liberally and even a remote cause is
considered, whether motivating or material. So Albericus on Digest
XLVIL ix. I, 2, and XXXIX, ii. 18, n, where he makes application
to many questions; so too on Digest XXVII. i. 18, on the basis of that
text (see also Baldus there).
Hence, from what has been said above, it is clear that different
rules may be laid down in accordance with the variety of cases. For
suppose that under an existing statute or agreement, to the effect that
reimbursement is to be made to the owners for the horses of soldiers
that are killed in war, or for oxen that a village is forced to send along
with the troops, and which happen to die while with the army; now
if it should chance that a horse is wounded in battle, and, after its
return home, it comes to its death in the stall as a result of fire or
collapse of the building, or if an ox, wearied out, on its way home falls
in the way of bandits who capture it, surely these animals will not be
said to have been lost in war, a
Yet, in the case of the ox, justice calls for another decision; for 3, ljan "'
that mischance at the hands of the bandits came to pass on account of
the army, inasmuch as the poor rustic would not otherwise have
visited that place. Also, in the case of a horse that has been so wounded
in battle that it is clear that it cannot recover, I should think that the
wounds were the critical thing, and not the accident of the collapse
of a building." * So Dig. ix, ii.
And while Digest, IX. ii. 51, I, seems inconsistent with the laws SI '
cited (though in them all a mortal wound is assumed, but with varied c Dig- ix.ii. n,
9 rulings), I think that by way of solution we should say [67'] that there 3 ' and I5> r "
are some wounds which indeed appear to the physicians to be mortal,
either because of their location or other circumstances, but which,
nevertheless, are not beyond the bounds of hope; whereas some are
without question fatal, so much so that their cure is manifestly beyond
the power of the surgeon's skill.
And in the first case, death as a result of some accident will clear
the skirts of the party who inflicted the original wound. And this
bears on a case which I witnessed in actual practice, where a person
had been seriously wounded, and the physicians from the start had
rendered the verdict that one of the wounds appeared to be mortal,
though this was not absolutely certain, and a month later a fever set
in and the man died ; for such a man is judged to have died either from
the fever, or poor care, or from malpractice, and not from his wounds;
and this I found to be the decision of Socini.
But in the other case, whatever may subsequently befall the
wounded man, the person who wounded him will not be cleared of
A Treatise on Military Matters
[Part VI
"Wordwortz-
c On Decretals
V. xii, 16, el.
2, col. 2 ; and
V. xii. 7, col. i.
* Dig. XIX. ii,
So JMg. XIX.
ii. 25, 6. 1
zg, XIX. ii.
,4; a i.
XIX. v, 6.
Ixvi, i, no. 35.
* On Decretals
V.iii.36.
* Consilia, 140,
col. i ; 144,
col. 2, at end ;
315, no, 2;
413, no. 5; and
passim.
1 On tit. D*
Pfl Constan-
tide, 9, at the
middle.
* Consilia, III.
24T(Sip
guerras),
even the crime and punishment of homicide. This accords with the
glossator on Digest IX. ii. 15, i a and IX. ii. 51*; see also some remarks
on this topic by Felinus. c
This discussion bears also upon the question whether a lessee 10
should be excused from payment on account of war. And assuming (i)
that this has been so specified, the agreement will be kept, as is stated
in Code 9 IV. Ixvi, I ('whatever has been agreed upon between the
parties shall be fulfilled to the letter') ; or (2) no such mention had been
made, and then: (a) the loss is serious, and excuse is granted, when the
loss is unavoidable ; d or (b) the loss is slight, and no allowance is made, n
For the lessee ought to bear a moderate loss, inasmuch as he is not
deprived of a profit when it is unusually large.
But it is customary to differentiate otherwise in the case of the 12
tenant farmer, as Jason sets forth at length on Code IV. Ixvi. I, con-
cluding, in accordance with the view of the ancients, that no indulgence
is granted except when crops are an utter failure. But in actual prac-
tice I have ruled otherwise. For if the idea of 'contract' is approximated
in a tenant farmer's agreement and it is in effect tantamount to a lease
(just as 'tithe' and 'tax' are used in speaking of the Lord's share of the
fruits) as is true generally in the city of Asti, where everybody
speaks of 'tenant farmer's agreement', though the payment is neverthe-
less one-twentieth, or five per cent. I should have regard for the
spirit rather than for the letter; for the essentials of a contract ought to
weigh more heavily than a mere name. 1 Compare Z)*wtafr, III. xxxvi. 6,
where 'tenant farmer's agreement' is used for 'tax'. At times the term
is employed also of leasing, according to Jason 8 and Felinus. 11 And on
this subject Decio may be consulted. 1
Further, it is customary also to look into the time of the making of a 1 3
contract, to determine whether the lessee could have foreseen disaster
as, for instance, if he made the agreement at a time when war was
now raging. [68] For in such a case he will not be excused, in view of
the rule : *A loss which a man experiences through his own fault/ &c. ;
see also the passage in Digest, XXXIX. ii. 13, 6. The general question
is treated by Baldus. 1 And Bartolus* attempts to determine what loss
is to be counted great, and what counted slight.
Baldus 1 queries again whether, on account of war, indulgence 14
should be extended to those qusestuaries of St. Bernard, St. Anthony,
and St. Bovo, and other persons of that sort, who contract for, or buy
from the chief abbots the yearly income of those places. 3 And, in support
of the negative, he says that they appear to have purchased a throw of
the net or a cast of the dice. But he decides for the other view, on the
1 [This citation is corrected Tn.] 2 [The text of this title was once differently divided TR,]
_ 3 [See quastuarii, under the general heading qutesta, in Du Cange's Gkssarium medics et infima
Latinitatis (Niort, 1886), vol. vi, p. 590, col. 2, which refers to the activities here described. ED.]
Chap. I]
and Warfare
'53
ground that the hazard 1 of this income and the hazard of the dice are
not alike. ^ For in one case the hazard is absolute, in the other some
15 certainty is assured from among the chances.
Whether the mere apprehension of coming war helps a contractor
to secure remission in the same way as war itself does, is a matter which
I have touched upon above, a with citation of Petrus de Ancharano. b
And, to supplement what is there said, consult Joannes of Imola, who
is reported and followed by Decio. d I am supported also by the words of
Cicero in the speech For the Manilian Law,* as quoted above.
However, many details will have to be taken into account; for
example, how long was the time that the apprehension lasted, of what
sort and how great was the loss it entailed, whether the fear was
groundless, and whether the apprehension was shared by all or the
greater part. f In regard to this matter Ripa g states that a period during
which renewal of war is feared more nearly approximates war than
peace; and he, too, cites the passage from Cicero above noted, though
he says 'in the speech for Gnaeus Pompey' which, however, is the
same that I referred to.
CHAPTER II
WHETHER EXEMPT PERSONS SHOULD BE ASSESSED FOR PURPOSES OF
WAR
SYNOPSIS
1 Whether exempt persons may be sub-
jected to a war tax.
2 If taxes are increased, how this is done,
and to whom they apply.
3 A substitute tax is on the same footing
as the one which it replaces.
4 When, because of war, a tax is imposed
upon those who have privilege of
exemption.
5 In time of dire need, exemption does not
avail.
6 When the church is bound to contribute
with the laity.
7 When the resources of the laity are
counted insufficient.
8 The laity is wholly hostile to the clergy.
9 The clergy are more holy than the laity.
10 The clergy should be sympathetic to-
ward the laity.
11 [68'] Your profession and your desires
do not agree,
12. Church officers normally are not liable
to burdens and taxes.
13 Whether a church may be intrenched
for use as a fort.
I ASK next whether exempt persons should participate in taxes and
1 other public burdens that are imposed on account of war. Code, X.
xxvii. I, with gloss, answers in the affirmative; and so Bartolus holds on
that passage, citing Dynus on Digest XXX. i. viii, where all the post-
glossators treat this subject, and Jason states that the view of Dynus is
generally accepted.
1 [For in certitudo read in&rtitudo. ED.]
1569.64 X
* Part V,
Chap. i.
b Consilimn
88.
c Consilium 7
(Restat videre).
d Consilium
617, no. 12.
'[15]
)i. XIX. ii.
27, i.
154
A Treatise on Military Matters
[Part VI
Consilia, III.
458 (Latafuit
sententia),
repeated in V,
406.
*Q Authent.
viii, oportet.
* On Dig.
XXX. viii.
* On Code X.
Ixiv. i,
words quaer o
ufrum,
* On Code VII.
liii. 5, last col.,
words hoc
modo.
* On Feuds II.
liii. i, 6, two
last cols.
last col.
Z%
viii, col, 3, If 3
(fiat opinio).
* On Dig.
XXX. viii,
concl. 3 and 4,
10 Code X,
xix-4-
* On Dig.
XXXIII. i. 10,
But Baldus a discusses at length the subject-matter of Code, X.
xxvii. I, and makes a distinction between pay for the soldiers and the
other demands that arise on account of war. For the pay, he says,
definite and regular provision is possible; and it is cared for by revenues
and other funds turned in by contributors. 11 But in regard to the
demands which seldom arise and which cannot readily be anticipated
(as for the purchase of foodstuffs in time of scarcity) he favours the
other view.
Hence we gather from his words that, in case of shortage in pay,
those alone will contribute who otherwise customarily provide what is
contributed for that purpose (this being a normal tax with a regular
procedure), and that exempt persons will not be burdened; but that
the case will be otherwise, if anything serious and unexpected happens.
That, perhaps, was the explanation of the special case mentioned by
Raimondi; though Jason, overlooking the above mentioned Consilium
of Baldus, says that this plea is a refuge of the wretched.
And, perhaps, too, the reasoning of Baldus d looks in this direction
when he makes a distinction according as a tax is imposed either on the
principle of multiplication, or simply; for when a simple tax is doubled 2
or multiplied, only those persons will be held for the increased tax
who were liable for the original. On this point compare Bartolus 6 and 3
Baldus/ both of whom hold that when one fund is substituted for
another for some public purpose, the source is looked into, that we may
determine who are liable. See Baldus again 8 , and Ripa h ; though Jason 1
rails at this view of Baldus.
But when a tax is imposed simply, exempt persons can more readily
be burdened; though there [69] might be such breadth of provision and
Frivilege that even a war emergency will be covered, as was stated by
arisio, 3 in an opinion which he rendered to the Lords of Sarralunga,
my fellow countrymen of Alba. But such exemption was little observed
by them in the recurrent calamities of war.
And truly the necessity might be so pressing and 1 urgent, particu- 4
larly if it may not be met without contribution from exempt persons,
that it would then be fair that even they be obliged to contribute, as
Socinus k said. This is supported by the text and the commentary on
Decretals III. xlix. 4; for if in such emergencies contribution is made
by the church, how much more will those contribute who hold exemp-
tions from princes, the latter being not seldom liberal and munificent
at the expense of others a practice which is denounced by Lucas de
Penna P 1
In fact the need might be so great that even a formally granted 5
immunity that had taken on the character of a contract would not hold;
compare Digest, XVIII. i. 78, 3, the comment of Bartolus, 111 and Digest,
1 [For tanqua read tamgue TR,]
Chap. II]
and Warfare
'55
6 II. xi, 4, 4, where it is shown that a person who accepts all the risk of
chance happenings is not responsible for anything exceedingly unusual. 1
7 ^As for my statement above that the Church is bound to contribute
with the laity when the latter's resources are not sufficient to meet the
assessments, this same principle applies also to the case where a loss
averted by a money payment is one that would affect the clergy as
well as the laity; e.g. when the looting of a city or the invasion and
devastation of a territory are threatened, and the matter is settled on a
money basis. See Bartolus 1 on this point, which is treated at length by
Jason, b though he does not cite Petrus de Ancharano. c
But it is not made clear under what circumstances the resources
of the laity are to be counted insufficient. For the laity often has a
8 way of taking advantage of a situation, being altogether unfriendly to
the clergy. d It is the fairer plan, therefore, to leave the decision to the
bishop of the diocese; for Decretals, III. xlix. 4, states that the bishop
and one of the clergy should investigate how great is the need or the
necessity in question, when it is claimed that resources are not sufficient.
9 And this seems the more just, in view of the fact that the clergy are
better and holier than the laity, and because the more worthy should
take precedence over the less worthy. 6
But the clergy for their part, in case of real need, ought to show
themselves ready to support and help those in trouble, lest they be
open to the reproof which the Emperor 1 administered to a philosopher
11 who petitioned for exemption from taxation: Tour profession and
your desires', said he, c do not agree. For, though posing as a philo-
sopher, you are a slave to the rapacity of greed' words which are
quoted by Lucas de Penna s [69'] against the clergy in this connexion.
And though he goes onto enumerate many cases 11 where the Church
12 and the clergy are bound to contribute with the laity, I think it safer
and sounder to say without further qualification that they are under
obligation in none but the two cases above mentioned, namely, when
it is a question of common advantage, and when the laity is much
impoverished 2 and staggering under the weight of taxes. But I under-
stand this, however, in the light of the restriction mentioned in
Decretals, III. xlix. 7, i.e. that action be taken only after consulting the
Apostolic See, unless the need be urgent.
Perhaps we might say that the resources of the laity are insufficient
when the taxes consume a little less than the whole year's profit and
income. 1
13 Here I raise the incidental question whether it is permissible 3 in
time of war to construct fortifications in a church and to intrench or,
as they say, to fortify it against the enemy. The legists declare that
10
In.
viii, no, 16.
c Consilium 96
(Super dido
dubio).
d Decretum, II.
ii. 7. 49, and 14,
Cf. Decretals,
III. xl. 3, with
comment of
Bartolus on
CofcVII.lxiL
32, 5, at end.
xix. 8, near
end of Com-
mentary,
words honeste
igitur facerenl
clerid,
* Ibid., col. 2,
words et
quidem
Eccksiae.
'Cf.0fc.XLIL
iii, 6, with note
of Bartolus
there and on
Dig. XXXIV.
i.32.
1 [Reading insolito for insolido.-
3 [For liceat ne read liceatne.'
2 [For exhaudisti read exhausii TR.]
& Summa, In
quantum,
words item
ecdesia.
b On Decretum
II. x. 1. 14-
B On Decretals
III. xlix. 5.
i 5 6
A Treatise on Military Matters
[Part VI
this is permissible. So Baldus, 3 who cites on this point Jacobus of
Arezzo, Cino, and Petrus Bellapertica, adding, however, that the
canonists dissent.
And in fact the latter do here make a distinction. For Hostiensis a
states that such action is not permissible for those who are engaged in
aggressive warfare, especially bandits; but he says that in time of need,
with the permission of the bishop, and because of fear of heretics or
heathen, or even of robbers, or to protect the property of the church,
fortifications may be constructed temporarily, with the understanding
that when the stress and the emergency have passed, the works will be
demolished. That accords very well with the view of the Archdeacon, b
who says more concisely that fortification is permissible for defence
but not for offence; and this is elaborated by Panormitanus.
[70]
HERE BEGINS
THE SEVENTH PART OF THE WORK
CHAPTER I
ON THE PRIVILEGES OF SOLDIERS
SYNOPSIS
1 The state is maintained by reward and
punishment.
2 A father makes presents to his son, and
a wife to her husband, for military
purposes.
3 Whether the gain from a dower belongs
to a husband in the army, or to his
father.
4 A soldier who is a filiusfamilias disposes
by will of his military possessions.
5 Likewise a Jlliusfamilias in the civil
service disposes by will of his personal
belongings.
6 Whether a cardinal who is a Jtlius-
familias may legally make a will.
7 A Jlliusfamilias in the army may make
pupillary substitution for his son,
8 A soldier makes his will as he wishes, and
as he can.
9 Two witnesses to a will are sufficient.
But understand this as explained in the
text.
10 A codicillary clause is understood in a
soldier's will.
H In regard to military property a soldier
may directly name a substitute heir at
any time.
12 A new interpretation of Code, VI. xxvi,
8 and Digest, XXVIII. vi. 15.
13 Code, VI. xxvi. 8 and Digest, XXVIII.
vi. 15 explained differently than other
Doctors have understood them.
14 A soldier may die in part testate, and in
part intestate.
15 Many laws which seem contradictory
are expounded with reference to the
claim that a person named as heir to a
definite part takes the whole. In
regard to a soldier's will, the rulings of
the laws seem various.
1 6 Whether the right of accretion has place
in a soldier's will. 1
17 Whether a person prevented from suc-
ceeding by right of accretion is to be
counted as barred also from intestate
succession.
18 Digest, XXXVIII. ii. 42, I interpreted
otherwise than the Doctors have under-
stood it.
19 An heir may be appointed for a definite
time by a soldier.
20 The birth of a son does not break a
soldier's will.
21 A soldier may make a will, though un-
certain of his status.
22 A soldier cancels a will under the same
conditions as he executes it.
23 [70'] A will made by a civilian holds
under the military law, if, becoming
a soldier later, he so desires.
24 A soldier may die with many wills.
25 An incomplete will, made at a later
date, nullifies an original will regularly
drawn.
26 Digest, XXIX. i. 35 explained dif-
ferently than by the other Doctors.
27 Camp followers make their wills under
the military law.
28 Whether a man assigned for service is to
be rated as a soldier.
29 A soldier condemned to death makes a
will covering his military possessions.
30 A soldier condemned to death transmits
his military possessions to his legal heir.
31 Whether the Trebellian portion is to be
subtracted from a soldier's property.
32 Whether a soldier released from service
retains the privileges of a will made
under the military law.
33 The year following release has some
privileges. .See the text, and the two
following numbers.
34 Honourable discharge.
35 After how many campaigns soldiers may
be discharged.
36 Rewards are due the man discharged.
37 How mustering out and discharge differ
from one another,
read testamenio. ED J
159
i6o
A Treatise on Military Matters
[Part VII
Bruium, L xv.
3-]
xvii. 3, 4, and
ii.
plane. 2
6 On the same
law.
ACCORDING to Cicero, a Solon stated that the commonwealth is i
upheld by two things, reward and punishment a sentiment well
befitting such sagacious men. For a state cannot long endure in which
virtue is not honoured and rewarded and crimes punished.
Since, therefore, the soldiers of old endured heavy toil in the service
of the state, not a few rewards, prerogatives, and privileges were with
good right accorded to them. These it is my purpose to review 1 (if not
all, at least the greater part), to the end that the soldiers of our day
also may fight courageously, and by worthy service show themselves
deserving of having like rewards given them even now.
This then shall be first of the privileges, that whatever is presented to 2
a soldier by his parents as a gift (provided that it is something for use in the
service) falls under the military law, and becomes a part of his military
acquisitions ; b though, under other conditions, gifts from parents to
children have no legal standing. On the same principle, too, a woman
may give her husband, as he goes forth to service, such things as are
suited for military use if, however, it is specified that the gift is for this
purpose.
But if the wife makes the presentation without comment, or if the
things given are not suited for war purposes, the gift is not valid
and this holds, even though it is stated that the gift is for military
use [71] in defiance of the fact that the thing is inappropriate and
unsuited to a soldier; for regard is had for the fact rather than for mere
verbiage. 4 However, the gift even of an unsuitable thing might stand,
if it is presented with the intent that through its sale appropriate
things shall be secured, e.g. arms or horses. So Bartolus 6 . Thus you
see, reader, that the rulings are various as to the things which a wife
gives her husband in the service.
And there is variation also in the regulations having to do with 3
another important case involving the same parties, namely when the
wife of a soldier dies, and his father is still living. For if the gain from
the dower passes to the husband by agreement or by statute, that gain
being connected as it were with marriage ; is ascribed to its liabilities,
and falls to the children of the union, who are under the control of their
grandfather. But if it is a question of succession itself to the wife's
estate, the latter is acquired by adventitious right by t^filiusfamiHas
himself, and is held as a part of his $eculium castrense\ see Digest^ XLIX.
xvii. 16, near the beginning.
To touch another point in passing, it is ordered in section I of the
above law that inheritance of one brother from another who is his
comrade-in-arms shall be recognized under military law, provided that
the brothers are serving in the same camp or in the same province; but
1 [For re censm read recensere.'Eb.]
2 [Replaced by nominatim in the version now current (?). TR.]
Chap. I]
and Warfare
161
not so if they are in different places thus apparently stressing more
the fact of association than the inherent claim of relationship.
4 But over his military acquisitions the jiliusfamilias has such
5 may freely dispose by will of his military acquisitions . b And this
privilege applies also to the unarmed or civil service; so Code, III.
xxviii. 37. Therefore a Doctor who is a jiliusfamilias may dispose by
will of his military acquisitions. But he must observe the forms of
common law; see the same passage, section if. ('to execute a last will
and testament according to the laws').
6 This passage was overlooked by Jason d in his discussion whether a
cardinal who is a Jiliusfamilias may make a will, and he criticizes
Baldus for saying that such a will is possible under the military law.
But, as I think, the decision should be based upon the ruling of the
above cited section I /.
However, Martinus Laudensis 6 states that, according to Hostiensis,
it is the rule of the Roman court that cardinals may not execute a will
except by permission of the Pope. But, again, 1 citing the same state-
ment of Hostiensis, he restricts its application to monks or recluses of
other kinds who have been made cardinals ; g beyond this, he says, he
does not see what is to prevent the making of a will; 11 but, supposing that
such was the rule of the aforementioned court, such rule was by all
means to be observed. This seems to me sound.
7 The military privilege in will-making extends even to pupillary
substitution, i.e. to making a will for a son. Moreover, this privilege
belongs to a soldier who is at once [71'] father ^ndjiliusfamilias^ But
he may not appoint a guardian for that son of his, lest his privilege
should begin to be prejudicial to the grandfather. 3
He also may cut off this son from succession to his military
acquisitions including even succession by law,* a matter that will be
discussed more fully below. And he may make a will separately for a
son under the age of puberty, or for himself and son. 1
8 Another (and fourth) privilege touching wills is that soldiers
execute them as they wish and as they can, m but yet with reservations:
9 (i) the will is made in camp, apart from all peril to life, and then two
persons must be asked to witness it; n or (2) it is made in actual battle,
and then the testimony even of two chance witnesses suffices (so says
a gloss on Digest, XXIX. i. I, and, as a matter of fact, in such a case
it will be sufficient if the soldier has written the name of the heir on
his shield, or in the dust, perhaps even in his own blood and with his
finger p ); or (3) the will is executed at home, and then it will be drawn
in accordance with the common law.*
xvii. 4, 2.
n, 2} ibid.
i1,$3',ibid.2
and 23.
c Code, III.
xxviii, 37.
* fa Code VI.
xxi. 3, nos. 4
and 5.
Tract, i, De
CardinalibuSf
qu. 13.
1 Tract 2, De
Cardinalibus,
qu. 17.
E So according
to Baldus, on
Autlimtica
following Code
I. Hi. 28
(IfeQ.
* According to
the rulings in
Decretals, III.
xxvi. i, 7, and
12.
28.
i Ibid.
XXIX. 1.29,
at end. and 30;
so according to
Bartolus, on
Code VI. xxvi.
8, col 2, at
end.
Ibid. 24.
Ibid. 40.
xxi. 15.
ilbid.
162
A Treatise on Military Matters
[Part VII
a /)z'g.XXIX,
i-3-
15, with gloss
there.
vi. 15.
5, with com-
ment by all on
8.
e According to
gloss on Dig.
XXVIII. vi.
* On Code VI.
xxvi. 8.
I. xxix. 20, col.
4, towards end.
There is also the further privilege that, in a soldier's will which has
been executed according to the common law, there is understood 1 the
provision: c lf this does not hold under the common law, it shall stand 10
under the special law.' a
Another privilege is that the soldier may name directly a substi- n
tute for any heir to his military acquisitions, just as if a father were
making a will for a son under the age of puberty," Hence the statement
is less surprising that in the same manner he names a substitute even
for a son of his who has reached the age of puberty.
But there will be this difference between military and civil
possession, namely that in regard to the former, even after the son
reaches the age of puberty, the soldier exercises a direct right; whereas
during the time preceding puberty his right extends to everything.
However, reader, since the way here is rough, pray attend. For 12
a father's right to name directly, in regard to the whole property (even
to the complete exclusion of the mother) a substitute heir for a young
son under the age of puberty is by no means a matter 2 of military
privilege. For by the common law this is the right of any one ; d but the
soldier's special right consists in this, that he can make a direct sub-
stitution for all time, and that it holds permanently. With a civilian
the case is different; for after his son reaches the age of puberty a
direct substitution becomes utterly void. 6 I recognize, however, that
in the case of the soldier, after the son reaches the age of puberty, the
substitution does not apply to other property than that which comes
from the father, in regard to which even the mother is debarred. See
Bartolus on Digest, XXVIII. vi. 15 and Code, VI. xxvi. 8.
And although the above laws seemed opposed and contradictory 13
(for the latter suggests that, in the case of a soldier's will, [72] a short
substitution merges into a trust after puberty, whereas the Digest
reference indicates that it is maintained as direct a discrepancy for the
solution of which Jason 1 exerts himself diligently, citing seven opinions
of the early Doctors who held varying views) if a humble person like
myself, fully conscious of the limitation of his understanding, may
express a little of his thought with all due respect for such eminent
authorities, I believe that we should say that in Code, VI, xxvi. 8, the
substitution is one of trust, and that those words c as in a case of trust'
refer to the thing as a fact, not being used by way of comparison
despite the hair-splitting in which Fulgosius and Jason here indulge.
For the expression veht ( e as') can figure in a statement of fact quite as
well as the word quasi. So gloss and Doctors on Decretals, I. xxix. 20,
where Felinus 6 expresses approval at length his usual fashion.
But in Digest, XXVIII. vi. 15, the substitution was really direct.
And so the explanation, of the difference is to be sought in the fact and
1 For sub intelligatur read sutintAligatw.ED.] * [For versatnr read versatw.~ED.]
Chap. I]
are
163
not in the law. For the Digest reference plainly states that the soldier
makes a direct substitution up to the twenty-fifth year. It is clear,
therefore, that he meant to make the will under the special military
law; for he could not otherwise have so substituted up to that age, except
by privilege. Naturally, then, throughout all that period the substitu-
tion holds uniformly under the soldier's special right.
^In Code, VI. xxvi. 8, on the other hand, it is clearly stated that the
soldier specified no time ('not up to a certain age') ; and the gloss there,
which says 'likewise, if up to the twenty-fifth year', makes nonsense of
that law. It would have been better to say 'otherwise, if up to the
twenty-fifth year', for this would have harmonized the laws under
discussion. For since Code, VI. xxvi. 8 does not specify a time-limit,
and the substitution might be based on the common law and also on
the military, in view of the doubt it is assumed that the soldier meant
to make his will under the common law. a
The above seems to me the most obvious explanation. But it
should be accepted with caution, as it differs from all others.
14 It is also a military privilege that a soldier may die testate in part,
and in part intestate. b From which it follows that in corresponding
fashion he may make one person 1 heir to his military acquisitions, and
another to his civilian possessions. In this case the debt encumbering
any part of the estate will become a liability of the heirs. And if one of
them, finding the burden too heavy, refuses to accept (supposing, for
example, that very large military accounts are left unsettled), the other,
even if he has already taken up his share of the inheritance, will be
required to take on this other also, or to renounce his claim to either. d
15 But as for the statement at the beginning of Digest, XXIX. i. 17,
namely that if a soldier divides his whole estate among several appointees,
they will none the less be heirs upon a par, 2 and will receive their
particular appointments as if pre-legacies, I do not think that this
concerns military privilege. For the soldier exercises this right in
common with other people, as he does many others which I shall take
up [72'] in another place. 6
There seems, however, to be a conflict in the rulings of Digest,
XXIX. i. 6, and 17, near the beginning; also of Code, VL xxi. I
and 3; so, too, of Digest, XXXVI. i, 17, 6, and XXXVIII. ii. 22, i.
Upon this difficulty the glossator exerts himself in comment on the
passages cited, and especially on CW* VI. xxi. I. So also all post-glos-
sators, especially Alexander and Jason, who cite others. The glossator's
idea everywhere is that it should be held that the soldier made the dis-
position with reference to a definite property, with intent to die intestate
as to the remainder; and this is the commonly accepted view.
1 [For alrerum read dterum. ED.]
z [Lines 38 and 39 of this page of the Latin text are transposed. TR.]
a According to
Code, VI. xxi.
6.
6;Code,VI.
xxi. i and 2.
17; I-
e For confirma-
tion see Dig,
XXVIII. v.
35, at the be-
ginning, with
fi.
164
A Treatise on Military Matters
[Part VII
* Dig. XXIX.
i, 17, at the
beginning.
b According to
Inst. II. xiv,
5, words non
autem, and ff , ;
and Dig.
XXVIII. v.
13, 1 1.
Cafe, VI.
xxiv. 13.
e words ideo
subftinendo.
Saliceto, however, recognizes a distinction: (i) In making his will,
the soldier followed the common law, and it is to be assumed that he
desired to bequeath throughout under that law; then there will be
application of the right of accretion, and the person appointed to inherit
specific property will acquire the whole, unless there is added a restrictive
clause; (2) the military procedure is followed, and there will be no
room for the right of accretion this being justified by the fact that
one and the same ruling should not be made under diverse laws.
Another distinction was made by Joannes of Imola, as reported
by Alexander here, namely: (i) The soldier made some one heir to a
particular and definite thing, and the residue will go to the legal heir;
or (2) he distributed the whole estate, and it is entirely taken up; a or
(3) he made a fractional distribution, e.g. assigning^ one a twelfth,
and to another a sixth (as in the case in Code, VI. xxi. 3),_and it might
be assumed that he desired to enlarge the twelfths, and in such a way
as to take up the whole i.e. so that the man who was named for a
twelfth would receive a third, and the one named for a third would
receive two-thirds making no difference, as it were, whether he
named one for a third and the other for two-thirds, or, as has been
said, one for a twelfth and the other for one-sixth or two-twelfths
(which is to say that he desired his will to stand under the common
law).*
But this last cannot apply where the disposition by will has to do
with definite 1 classes of things. Such is the view taken by Fulgosius and
Romanus here, and upon a passage in Digest^ XXXVI. i. 17, 6, which,
however, seems to make for the contrary. For, it is therein stated that
just as a soldier's will touching specific property is valid, and action is
allowed the heir, so by the decree of the senate there referred to, right
of action on the basis of specific property will be transferred. And yet
it is clear that by the common law right of action is not transferred to
a man made heir to specific property/
They meet the difficulty by supplying the words 'as a whole 3 with
the phrase 'touching specific property' in Digest, XXXVI. i. 17, 6.
This, according to Alexander, does violence to the passage, though in
my judgement the interpretation is not forced; for it is assumed that
thejideicommissum covered a generality, i.e. Italian or provincial pos-
sessions. Accordingly, the comparison of the jurisconsult which follows
there should be understood of a parallel case.
Again, that comparison might be understood to mean that if [73]
lijideicommissum is executed in regard to a specific thing, action will
be transferred to the extent of that thing, and because of it. Such was
the view of Alexander there. 6 Or, finally, it might be said that the right
of action passes over by special dispensation and military privilege. This
1 [For incertis read in certis.En.]
Chap. I] and Warfare ' 165
is not precluded by Code, VI. xxiv. 13, which has to do with a civilian,
and with a view to the common law.
There is still another distinction, made by Angelus, as Alexander
there reports also: (l) The will specifies a quantity or a definite thing,
and then the man is intestate as regards the rest; or (2) the appointment
is proportional, and then the reverse is true. This does not appeal to
Alexander though not even this distinction is to be called absurd, for
a proportional share takes to itself the residue more readily than if the
appointment has been made with reference to a definite thing even
in the case of a soldier's will For in the case of those having a pro-
portional share transfer is easier.* fc.vi.i.
Yet the distinction is discredited in Code, VI. xxi. I and 2 23 ' 5 '
(although it might be possible to harmonize, in view of the qualification
'particularly' which appears in the first of these laws, and the restrictive
expression 'merely' which is in the second) ; and there is dissent on the
part of a gloss 1 ' which holds that appointment as heir to civil or military b On Code \i.
possessions is not extended to the residue. XXI ' r ' at en "
To me it seems the better plan to understand Digest, XXIX. i. 6,
exactly as it stands, namely, that by virtue of the very fact that the
soldier named an heir to a farm or some other specific thing, he desired
all the remainder to go to his heirs by intestate succession. 1 This is
everywhere the verdict, e.g. on Code, VI. xxi. I and 2, Digest, XXXVI.
i. 17, and other similar laws.
And there is no difficulty with Digest, XXIX, i. 17. For the sound
and correct text there states that the testator appointed one person as
heir to his city possessions, another to his country holdings, and a third
to the remaining (ceterarum) things. For who with even a smattering
of Latin would say 'the third to certain (certarum) things' ? And what
would be the meaning of such a phrase ?
This, 2 too, is the reading of the text in section I of that same law
('one to the military acquisitions, another to the residue'). So in
Digest, X. ii. 25, I, so also in XXXVIII. ii. 42, I ; and thus Haloander
corrects the above-mentioned Digest, XXIX. i. 17, as I find it in^the
Nuremberg Pandects. 3 With this understanding, all the above-cited
laws are harmonized.
For in case a soldier has named one of his comrades-in-arms as heir
to his civil possessions, if he appoints another as heir to the remainder,
the latter will inherit the entire residue. But if he declines, his share
will not go by accretion to the person named for the civilian posses-
sions; for the men are not coheirs (despite the fact that the last named
is obliged to shoulder the whole and to satisfy all creditors, or to
1 [For ad intestate successuros read ab intestate
2 [i.e. ceterarum rather than certarum. T&.]
3 [For pandectis. Nwembersensibus read Pandectis Nwembtrgensibus.E.]
1 6 6 A Treatise on Military Matters [Part VII
renounce his claim altogether, as I stated above, citing Digest, XXIX.
i. 17, l). And between persons thus appointed there can be no action
for division of heritage; for there are, so to speak, two inheritances, as
is stated in section I of the law just cited, and in Digest, X. ii. 25, I.
But if the testator names no one for the residue, this will fall to the
* Dig. xxix. legal heir, on the assumption that the man intended to die intestate/
1 6 - (And I do not think that a distinction should be made [73'] according as
that part to which he appointed an heir was a general or a specific thing.
For we must assume that his intent was still the same namely, that
he desired to die intestate as to the remainder. For, since this was his
privilege, what matters it whether he names an heir for a single farm
which he has, for example, in France, or for all the provincial possessions
he there holds ? And why should the person designated take every-
thing to himself any more in the second case than in the first ?) This
view is supported by Institutes, II. xiv, 5, if you connect the phrase
'unless he be a soldier' with what has already been said above in that
same paragraph, namely, that if a person is named heir to a half, the
whole (as) is contained in the half.
With reference to Code, VI. xxi. 3, which seems out of harmony
with this position for therein we read that a daughter appointed to two-
twelfths and the wife appointed to one-twelfth will take the whole
inheritance, just as if they had been appointed with the provision that the
daughter should have two-thirds, and the wife a third I answer that this
is true here because the choice fell upon the daughter, who otherwise was
the legal heir; so that it is easier to believe that the soldier desired to
increase the twelfths, and augment them to the point of covering the
b Inst. II, xiv, whole (which is as much his right as it is a civilian's 13 ) than it is to suppose
5< that he desired the residue, i.e. three-fourths, to go to the legal heirs
by intestate succession; for the legal heir, 1 i.e. the daughter herself, was
selected ; and in regard to her it is not so likely that the soldier desired the
inheritance to come by different methods (namely, a part by testament,
and a part through intestate succession) as it is probable that he meant to
follow the common law, with expansion of the twelfths, as I have said,
For when a soldier appoints an outsider as heir to a definite thing,
naming no one for the residue, it is assumed that he desires the remainder
to go to the legal heirs. But when he thus selects the legal heir, what
else can we suppose he intended than the procedure which as it were by
necessity the law demands, namely that the appointee receive everything
tinder the will there being no room for the above tacit assumption ?
And though it might be objected that, in the case cited in Code,
VI. xxi. 3, it could still be assumed that the soldier desired that three-
fourths also fall to the daughter by right of intestate succession (inas-
much as he appointed neither of the parties to it), we may answer that
1 [For legitimus read legitima. TR.]
Chap. I]
and Warfare
167
a Consult Code,
V. xi. i.
in such a situation two legal solecisms are simultaneously involved: (i)
that the soldier desired that one and the same daughter be his heir, in
part by will, and in part by intestate succession a situation not else-
where found 1 in law; and (2) that the appointment to a fraction would
hold only for that fraction, and would not draw to itself the residue by
right of the will. And yet nowhere else in law are two solecisms simulta-
neously involved. 3 This interpretation of ours differs little from that of
Imolensis, as reported above, except in so far as it is supported by other
considerations which he too, perhaps, had in mind. And as for my
saying above that it makes no difference whether the appointment is
made to a specific or to a general thing not including [74] the whole
estate, there is support in Digest, XXVIIL v. 79, near the beginning,
if we may argue from the contrary. For it is there stated that a person
not in the service appointed one man as heir to his Pannonian posses-
sions, and a second to his Syrian; and it is said that they are counted
as heirs upon a par, and to the whole implying, as it were, that the
case is different with a soldier's will; for what else could be inferred
from the words 'who was not in the service' f And such is the statement
16 of gloss i there : 'Otherwise', it reads, 'in the case of a soldier'. Further-
more, as regards the case in Digest, XXVIIL v. 79, it is certain that
between the men so appointed there was place for the right of
accretion. But I take it that the decision would have to be different,
if it were a soldier that made a will in this way; for then the inheritance
rejected by one of the appointees will not go to the other by accre-
tion, but will fall to the intestate succession, as is stated in Digest,
XXXVIIL ii. 42, i.
In regard to this last, the glossator and Doctors find difficulty
17 with Code, VI. xxi. I, according to Alexander there.* For, on the basis b in no. 7.
of the above law, they state that a person excluded from succession by
right of accretion is not for that reason to be accounted excluded from
intestate succession; but I cannot see how 2 they gather this from that
law. For, in the first place, the freedman Titius was not such a person
as could succeed by legal right (for, by Roman law, freedmen are not
designated as legal successors to their patrons, but contrariwise, patrons
are designated to succeed freedmen), and, second, he there succeeded to
the things mentioned for no other reason than that he had been named
for the military acquisitions.
18 And as for the reading of the text 'the inheritance was taken up 3
by Titius through intestate succession', the words 'through intestate
succession' are an interpolation, and they do not appear in good
editions. And this is clear from the statement itself; for since it reads
that though the inheritance has been taken up by Titius, his patron
still has no right to begin contratabular proceedings, it goes without
1 [For invenit read invmitur. TR.] 2 [gtw, i.e. quomodo*Tk. 3 [For addito read adito. X*.
i68
A Treatise on Military Matters
[Part VII
a- Dig.
XXXVIII. i
3>5-
41, at the
saying that in the will another person had been made heir to the
civilian possessions. For there would be no need for a patron to begin
contratabular action in a case of intestate succession 4 nor yet, as a
matter of fact, in a case of succession by will, provided that the inheri-
tance was not yet taken up. So indicated in the passage last cited; and
this is stated also by the glossator on Digest XXXVIII. ii. 42, I.
Hence Titius did not come into the military possessions for which
he was named by right of intestate succession ; and the civilian property,
which was left pendent by the other heir's refusal to accept, did not
pass to Titius by right of accretion, but to the soldier's legal heir. So
that law gives no support at all to the claim that a person forbidden to
take property by right of accretion is not for that reason to be regarded
as hindered from inheriting by intestate succession.
However, if this Titius had been a person who would otherwise
named heir to the civilian possessions had refused them, even though
Titius should not have taken over this remainder by right of accretion,
perhaps he would yet have acquired it by right of intestate succession.
For in regard to the civilian possessions, the testator meant to give the
preference to the heir named; but if the latter declined, there would
no longer be any reason why the common law should not enter, and
the property be taken up by intestate succession.
Again, Digest, XXXVIII. ii. 42, I shows (as I have said above)
[74'] that it makes no difference whether appointment is for a specific
or for a rather general thing (note the words there : 'as if they had
received 1 shares of the same inheritance 3 ). And on the same passage
there is also a gloss which makes a distinction according as parts of
the same inheritance are bequeathed, or a certain sort of conglomeration
of two parts conceived of as existent in the case of the estate of the
deceased soldier.
Touching a soldier's will, another point needs to be noticed
regarding the matter of the right of accretion, namely, that it fails, not
merely between heirs named to different properties (as is the case in
Digest, XXIX. i. 17, I and XXXVIII. ii. 42, i), but also between
joint heirs named without differentiation, in case one of them declines
to inherit; unless it appears that the deceased willed otherwise. So
according to the unique passage in Digest, XXIX. i. 37, where it is far
better shown that in the case of a soldier's will the claim to intestate
succession is stronger than the right of accretion.
A soldier may also assign an inheritance on condition and for a 19
definite time, later recalling and assigning it directly to another person ; b
and, in case he so names no one, after the time has run out or the con-
dition has ceased to be, his lawful heirs will succeed to the inheritance.
1 [For accepisset read accepissent. TR.]
Chap. I]
and Warfare
169
21
22
It is among the soldier's privileges, too, that his will is not broken
by the subsequent birth of a son, if the father is inclined to prefer the
person already named as his heir, rather than the son a even though his
thought and wish are general in character. (Hence the law last cited is
commonly quoted in support of the principle that general intent
suffices in regard to a right which any one is setting aside, except in cases
where a special nullification is called for. This point is considered at
length by Felinus.*) As a matter of fact, even if this was not the father's
intent in the beginning, but a second thought arising after the birth
of a son and the breaking of the will, the latter will resume its validity.
Again, it is among the privileges that a soldier makes a valid will,
even though uncertain of his status; so Digest, XXIX. i. n, 2 (the
case of a civilian is different, as is noted there); but this applies merely
to 1 those possessions, and those only, which the testator knew to be his.
For, suppose that he believed his father to be still living, though in
reality he was dead; then by no means will the heir of the son succeed
to the father's property.* But the case would be altered if that informa-
tion arrived later, and the testator's intent remained unchanged; so,
too, even if he should die after becoming a veteran. 6 This privilege is
discussed by Baldus. 1
And in revoking a will there are the same privileges as in executing
it, g And this is reasonable; for 'Nothing is so natural', &c. h Moreover,
the soldier's privilege is here so elastic that even frequent changes
are permitted (i.e. naming an heir, cancelling the name, and again
restoring it) ; so that it becomes simply a question of his intention. 1 And
not even the intervening [75] birth of a son interferes with this. 3
23 In fact, to such a degree are soldiers favoured in the making of
wills that even a testament executed by a civilian in the military
fashion will be valid, if later he dies in the service; so Digest, XXIX. i.
15, 2, where Baldus comments that by reason of the very fact that he
makes no change, the man indicates approval of the will. But it needs
to be proved that this was his intent at the time when he was in the
service;* for although a will made before entering the service could be
called a soldier's will, still it is not a will made by a soldier.
24 It is also among the privileges that a soldier may leave at his death
two wills, separately executed, and both valid, whether he desires the
first to hold under the law ofjideicommissum, or directly. In fact by
the new disposition he may elevate codicils previously executed to the
rank of a will appointing an heir directly provided, however, that it
is clear that this was his intent; all of which is shown by Digest, XXIX.
i. 19. Again, he may order that these same codicils hold immediately
and directly, and that they constitute a will. 1
I think that we should also rate among the privileges a fact which.
b On Decretals
ii, 12, col. 4.
33, 2, near
end; and ibid.,
9-
d Dig. XXIX.
i. u, at end,
and 12.
Dig. XXIX.
i. 13 and 14,
at die begin-
ning.
* On Code I. u.
i, qu. 14.
* [See Dig. L.
xvii. 35.]
*!%. XXIX. i,
27.
20 and 25; i.
36, at the
1569.64
1 70 A Treatise on Military Matters [Part VII
I have already noted above, namely that between two heirs, even
though named on equal terms, there is no room for the right of
accretion in case one of them declines to inherit (so Digest, XXIX. i.
37, though the Doctors there interpret otherwise).
Again, it is among the privileges that, even on the basis of an 25
unfinished testament, a previous will is cancelled though regularly
* See Dig. executed under either the common or the military law, a But there is
XXIX. i. 34. thjg difference 1 between a previous will executed under the civil law
and one made under the special law, that the former is not cancelled
by a subsequent unfinished will made after discharge from the service
and within the year immediately following, whereas the latter is
annulled, even if the unfinished will is executed in the year following
discharge; so according to Digest, XXIX, i. 34, latter part, and 35.
(Hence these laws are often cited as proof that a special law is more
easily set aside than the common 2 law.)
We can cite the closing words of Digest, XXIX. i. 35 in support of 26
another point also, namely, that a soldier may make his will at long
intervals and on many different days which does not hold of a
*Z)!g.xxvni. civilian; and this will be rated among the privileges. 13 But the Doctors
vi.^u!^ understand Digest, XXIX. i. 35 otherwise; for Angelus there says that
a person who makes testamentary disposition on different days is rated
as making different wills; hence the will last executed will have pre-
cedence. But I do not see how this concerns a soldier's will; for the
same thing would be true of the will of a civilian. Hence we shall do
better to understand the words of the Digest reference to mean: 'he
who writes at length on different days seems oft to be making his will,'
just as I have explained above.
For it is one thing to say that a will is often in the making (fieri),
i.e. that it is being brought to completion, and quite another to say
that many wills are made [75'] just as it is one thing to write at length
(plura) and another to write repeatedly (pluries), the former perhaps
referring to various sections, whereas the latter would mean that
several wills are written.
In the matter of making wills, privilege is accorded not only to the 27
soldiers themselves, but also to their attendants and others who 3 follow
the camp, if they too make wills while in the enemy's country; for they
also will execute their wills under the military law, as is stated in Digest,
XXIX. i. 44. (Baldus, however, seems to have missed the point here
in interpreting c in the enemy's country 5 (in hostico) to mean 'in the
hajids of the enemy 5 . For a person in such plight would be a slave of
the enemy and incapacitated for making a will, whether he was a
soldier, or anything else you please. d )
1 [differunt written carelessly for differt, TR.]
* [coi, i.e, communi. TR,]
Chap. I]
and Warfare
171
Hence, at the time the Emperor had an army in Germany or in the
Parthian country or also when, in our day, the Emperor Charles was
in Tunis and Algiers, all who were in their camps had the privilege of
making a will under this law (and the same thing is said in Digest,
XXXVII. xiii. i). Again, Baldus a makes the broader statement (to use
his own words) that the very armour-bearers and followers of soldiers
if they are essential to the maintenance of the latters' standing enjoy
the privileges of masters and soldiers.
28 But as to the question whether a person selected for the service,
but not yet formally enrolled, may make a will under military law, the
rulings seem various. For in Digest, XXIX. i. 42 it is stated that such
procedure is not permissible, even though the man is an accepted recruit
and is already travelling at state expense; whereas in the law imme-
diately following 1 " it is said that zjHiusfamilias, who is raised to knight-
hood and kept in attendance upon the Emperor under orders to take
the belt at once, may make a will covering his military acquisitions.
(Hence a glossator comments on that passage to the effect that what is
soon to be done is counted as already done.)
A possible explanation is that a new recruit is not so near to
instatement as a man who has already been passed and ordered to be
enrolled. (This is the explanation also of Digest, XXXVII. xiii. I, 2,
where it is stated that a soldier transferred from one division to another
may make his will under the military law, even though at the time he
has been released from one division and has not yet 1 been incorporated
in the other.)
Another solution is that a man chosen to enter the service is still
subject to rejection, if in the course of the training he is found to be
unsatisfactory. This could not be said of a man whom the Emperor
has ordered to take the belt.
29 It is also a privilege of the soldier that, when under sentence of
death, he may dispose of his military acquisitions by will, but of those
only, and only under the military law. d And in addition to these two
conditions mentioned, the privilege is subject to a proviso, namely, if
the soldier has secured such concession from the judge, or it has been
provided for in his sentence. 6 Furthermore, the privilege applies only
to men condemned for military offences [76] and not for crime in
general/
In fact, even in regard to military offences there is the further
reservation that the privilege does not hold if the oath of loyalty has
been broken; so Digest, XXIX. i, II, where the brothers Baldus and
Angelus comment to the effect that persons condemned for breaking
faith forfeit the right to execute a will. This, however, perhaps has
another bearing; for I should think it decidedly one thing (and a
1 [nundum, i.e. nondum ED.]
On Code II,
43-
c Vegetius,
Rei Militaris
Institute, I.
1 1, at the
XXVIII. iii.
6, 6.
*>i. XXIV. i.
32,S.
*t. xxviii.
$
jXA
xii. r.
1 72 A Treatise on Military Matters [Part VII
peculiar kind of disloyalty) to break the military oath, and quite another
to break faith elsewhere. (The military oath is discussed by a gloss on
Digest III. ii. 2, 3, and I have treated of it above.)
There is also another privilege, similar to the above, namely that 30
in the matter of the military acquisitions of a condemned soldier, even
though he has failed to make a will, the next of kin inherit, up to the
fifth degree, taking precedence over the claims of the fiscus. So Digest,
XXXVIII. xii. I and 2, where a glossator comments and at greater
length on Code VI. xxi. 13.
It is reckoned among the privileges also that a soldier may name
an exiled person as his heir a a thing not true of a civilian, b But if the
xxxn ff< ; soldier dies more than a year after discharge, such appointment becomes
i. ' void, as is stated only in Digest^ XXVIII. iii. 7.
Again, although the common law requires that three points of
time be looked into in order to determine whether an heir is eligible to
succeed or not (namely, the time of appointment, the time of death,
and the time of taking up the inheritance), for the heir of a soldier it
v ' 5 ^ 1 ' suffices that he have the capacity at the time of death; so Digest,
XXIX. i, 13, 2. And in section 4 of the same law it is stated that by
military privilege an emancipation through a fideicommissum becomes
* So Dig. direct, whereas in the case of a civilian's will there is a reservation. 4
xxix. 1. 14. Once more, it was customary to rate among the military privileges 31
the fact that in the case of soldiers' wills there was no subtraction under
the Falcidian and Trebellian enactments. (However, this was after-
wards changed by more recent laws, as I shall point out below.)
One thing, however, is to be particularly noted in this matter of 32
military wills, namely, that a testament holds only in case the testator
e inst. II. ai dies in the service, or within the year following discharge. 6
3> But I would not have it thought that in other particulars it makes 33
no difference whether a soldier executes a will or codicils while in the
service, or whether he does so within the year following discharge, For
those which are executed in the service are not subject to the Tre-
bellian or Falcidian deductions, according to the old-time law, but the
others are so subject even under that law. This applies also to a fidei-
*pig. xxxv. commissum}
u ' 92 " Moreover, no privileges will apply to wills made within the year 34
Cok, VL xxi. after retirement, unless the discharge is honourable not otherwise. 81
xxix. i. 26. ^ Again, in the third place, touching this year and the matter of
discharge, I believe that we should be careful to restrict what has been
said above exclusively to those soldiers who are retired by rule h [76'] (I
mean that we should understand the word mitti, not as the gloss here 1
explains, i.e. be relieved', but as referring to soldiers who receive dis-
missal, i.e. discharge, from their general, that they may quit the service,
with intent to serve no more thereafter not extending the application
Chap, I]
and Warfare
173
to tribunes, prefects, and others of that class, who are not retired by
rule, but who look to the Emperor for their successors in service 1 ).
Perhaps it would be better in this day, too, if the early practice
were followed, rather than that enlistment and discharge be left as a
matter of caprice with the commander. For (to touch on this point in
passing) it was not permissible at that time and under those regulations
to enlist for the service at random, as I have already pointed out above, 11
nor could the service be left in such fashion. Rather, the men were
formally discharged (or, if they were of high rank, they awaited the
appointment of successors by the Emperor), and after completing their
campaigns they were mustered out.
35 For there were recognized periods of service at the end of which,
as veterans who had served their time, they were released from the
36 military oath and rewarded. Hence also we read in Cornelius Tacitus d
that at the time of the Pannonian mutiny, the Roman soldiers com-
plained that they were held to thirty or forty campaigns, and that then
they were carried off to far-away countries, where, under the name of
'fields', they were rewarded with reeking swamps and unreclaimed
hills; also that their souls and bodies were held at ten asses per day.
The mutiny was quelled at length by the arrangement and concession
that, among other things, those should be mustered out who had served
twenty campaigns (i.e. who had been in the army twenty years), and
that those who had served in sixteen campaigns should still be held
under the colours, free from all other obligation than that of driving
37 back an enemy. So Tacitus. And from this you see also what the
difference is between discharge and mustering out.
a Same law.
b Part I, chap.
6.
c See text and
Di. XXVII. i.
8.
4 Annals, I
["SI-
CHAPTER II
ON THE DENARIUS AND THE PAY OF THE ROMAN SOLDIER
SYNOPSIS
1 What the denarius is.
2 What are as and asses. And see number 5.
3 The sestertius.
4 The denariohs 1 of Turin the same as the
quatrinus of Milan.
[5 See number 2.]
6 The denarius is a drachm of silver.
7 The denarii in ancient times were of
various weights.
Bur to touch incidentally upon another point suggested by those
words of Tacitus 'that their lives were rated 2 at ten asses per day',
which, without doubt, we should understand as referring to the pay
given to the soldiers by the state: they are thus explained by [77]
1 [This reading is required by the text under nos. 3 and 4. Taj
2 [For extiwri read aesiimri. TR.]
174
A Treatise on Military Matters
[Part VII
a In a work
called Brevia-
ritim Assis.
b De Sestertio,
Pecuniis,
Ponderibus et
Mensuris
Antiquis.
C 0n Horace's
Satires, II. iii
d On Horace's
Epistles, I. ii
pi. ii. 27],
Alciati, who says, This passage shows that the denarius amounted to i
ten asses of copper, which was the daily wage of the soldier. The same
amount is received by the German infantry at the present time, i.e.
three crowns per month'.
This view is supported 1 by a certain German, who has written a
treatise on the weights and measures of the ancients, together with
certain financial 2 terms. 'Ten denarii', he states, 'are equal to one
coronatus, which we call a crown'.
And this is in line with the statement of Bude, a who says : Two 2
and a half asses make a sestertius,* i.e. one Gardens, or one-half a 3
denariolus*. And again: The denarius equals four sestertii, i.e. four
Carolei, or two denarioli of Turin.'
Now this denariolus is what the people of Milan call a quatrinus. 4
For the Carokus, as it is called in changing French money into German,
equals ten denarioli of Turin; and the Caroleus which we call parpa-
gliola equals ten quatrini of Milan, i.e. two and a half soldi, or two of
our grossi of Piedmont. 4
In this way 5 we determine that the as of copper was to the Romans 5
what the soldo is to the people of Milan. Those ten asses per diem,
then, will be about the same as the Spanish coin which to-day we call
the real. Anticipating Bude and others above-mentioned, this had
been shown by Leonardus de Portis, a jurisconsult of Vicenza, in a
little work* in which he says in several places that a sestertius is the
fourth part of a denarius, and that the denarius is a drachm of silver; 6
hence he proceeds ; 'It is quite clear that ten asses make a denarius, and
that thirty ancient denarii equal thirty Julii, or thirty-six Marcelli, or,
again, three aurei of our day.'
In regard to the as and the sestertius, the same view is held
by Denis Lambin, a recent commentator on Horace. 'Originally',
he says, c 'the as was a copper 6 coin of a pound's weight, and it was
designated by the letter L 7 , its value being that of four of our Turinian
pieces, i.e. one Venetian marchetus* (here, however, he is mistaken, for
the marchetus is worth one-fourth less than the soldo}. 'And so',
says he, 'the sestertius, being equal to two and a half asses, was desig-
nated by LL and S 8 by the ancients (i.e. LL S), not by HS, as is done
incorrectly to-day'. And at another point 4 he makes a similar statement.
Therefore I am surprised that all agree on this, that ten asses are
the same as a denarius, as Alciati assumes on the basis of the above cited
quotation from Tacitus, though in the same passage that writer adds :
'Nor would there be any relief, unless the service should be entered
1 [For ad stipidatur read adstipuhtur. TR.] 2 [For numerariae read nummariaeTx..]
3 [For estertiu read sestertium.* TR.]
4 [The argument is valid only if the two Careott are equated. TR.]
5 [Le, by combining equations in nos. 3 and 4.TR.] 6 [For pens read aertus. TR,]
7 [i.e. l&ratis ('of a pound's weight'), TR.] 8 [i.e. semis ('a half). TR.]
Chap. II]
and Warfare
175
under well-defined conditions, so that the pay should be a denarius a
day, and the sixteenth year of service should bring discharge,' these being
the demands of the soldiers in that mutiny. If, then, they were demand-
ing that the ten asses per day be changed to a denarius, it at once follows
that the denarius was worth somewhat more. Either, therefore, that
passage in Tacitus is corrupt, [77] or, as I have said, the denarius was of
greater worth. 1
7 This is gathered also from a small work of Georgius Agricola, a who
says on this topic that originally the denarius was equal to ten asses,
whence its name; and he adds: 'as the Greeks have a silver coin (the
drachma), so the Romans have the denarius.' So much for him.
Again, the Spaniard Didacus b states that the denarius weighed a
drachm, his words being as follows: The denarius is the eighth part of
an ounce 9 . And he adds, 'If we should compare the denarius with the
silver coins of Castile, we shall find the Roman denarius equal in weight
to the silver real which the jewellers recognize, this being one-eighth
heavier than the current coin'. He says, further: 'Some have thought
that the denarius differs from the drachma in that the denarius is the
seventh part of an ounce, whereas the drachma is the eighth part." And
again he states: 'It is absolutely certain that the denarius was not
always of the same weight', demonstrating that the denarius of Agrippa
outweighs the Attic drachma by a half. And once more he adds: Tor
after the time of the Emperor Claudius they coined ninety-six denarii
to the pound, making them thus of a drachm's weight'.
Therefore, since that Pannonian mutiny of which Tacitus writes
happened in the reign of Tiberius (and, accordingly, before the time
of Claudius), we may assume that the denarius in the time of Tiberius
was more than ten asses and more than a drachm, and hence that there
was reason in the demand of the soldiers that, in place of the ten asses
which were the daily pay (i.e. a real or thereabouts), they should
receive a denarius.
And if, as Didacus believes, this denarius was equal to the one
which he saw with the stamp of Agrippa, it was then a little less than
the fifth part of an ounce; such a denarius would approximately equal
sixteen soldi of Milan, 2 or about fourteen grossi of ours, which used to
be the daily wage of a private soldier. But if you take it as referring to
the denarius which is the seventh part of an ounce, there will be a pro-
portional decrease in the estimate I have made; and in the common
currency it will be worth about thirteen soldi of Milan, and approxi-
mately twelve grossi of Asti. Farther on also I shall have something to
say of the pay of soldiers.
1 [This is usually credited to the depreciation of copper. For another explanation see the text under
no. 7 TR.]
2 For [Mediolanense read Medioknenses. TR.]
a De Mensuris
et Poiideribiis
Rowanontat
atque
Graecorum,
Bk. IV.
b In a work
called Veterum
Collatio
Numismatitm,
chap. ii.
176
A Treatise on Military Matters
[Part VII
CHAPTER III
ONCE MORE ON THE PRIVILEGES OF SOLDIERS
SYNOPSIS
1 Boys advanced to military offices.
2 A courtesan does not inherit by a
soldier's will.
3 A soldier is excused from guardianship,
except in the case of the child of
another soldier.
4 Ignorance of the law condoned in
soldiers. But understand this as ex-
plained here and in numerous following
paragraphs.
4 Non-application 1 of the Trebellian and
Falcidian enactments to a soldier's
will.
5 [78] A soldier who does not pay his tax,
or who fails to list an estate, does not
lose his property.
6 Code, V. iv. 21 explained in a new way.
7 Common (caligati) soldiers; why so
called.
8 A praescriptio \longi temporis] does not
operate against men in the service.
9 A soldier is fined only to the extent of
his resources.
10 A soldier cannot be condemned to death
without consulting the Emperor.
10 A soldier may press an abandoned suit.
1 1 Whether the pay of a captured soldier
continues.
11 Whether the pay of a soldier on leave
continues.
12 Within the year following dismissal a
soldier may be restored in integrum
regardless of developments during the
period of service.
13 A soldier does not suffer as a result of a
court order;
14 And if he does suffer, he recovers his
property when the price has been paid.
15 The incidental is given more attention
than the inherent.
16 Soldiers have privilege of court.
17 Who are qualified judges of soldiers.
1 8 The treasurer of the Emperor ranks
among the highest officials.
19 Higher officers of the Emperors are not
responsible to the governors of pro-
vinces, but to the Emperor alone.
20 Dukes, treasurers, and others of this
grade, even after completing their
term of office, enjoy the exemption
that in criminal cases they are answer-
able only to the Emperor.
21 Persons of high standing are not sen-
tenced without consulting the Em-
peror.
22 A soldier not enrolled in the register has
no privilege.
23 Guilds do not enjoy the ancient privi-
leges of corporations.
24 Sentence cannot be executed at the
expense of a soldier's pay.
25 Soldiers are not liable for transportation
services.
26 Whether soldiers are required to provide
entertainment, if they possess a resi-
dence.
27 An agreement to inherit from one
another is valid between soldiers.
28 The squadron commander may contract
for his whole troop.
29 Things bought with a soldier's money
become his.
30 A soldier cannot be forced to give evi-
dence against his will.
31 A soldier may not be sentenced to the
mines ;
32 Nor yet put to torture;
33 Nor hanged.
33 The punishment of hanging more
drastic than beheading.
34 Doctors have the privileges of soldiers.
34 2 Which of the military privileges doctors
enjoy.
35 Sons of soldiers enjoy the exemptions of
the father as regards torture and other
things above mentioned.
36 Decurions, too, are exempt from the
above named punishments.
[For babel read hdbent ED.]
[The text required that this number be changed from the position it occupies in the Latin. ED.
Chap. Ill]
and Warfare
177
37 Whether the soldiers of our day are
entitled to the ancient privileges.
37 A sovereign lawfully makes gifts to a
mistress, though the same is not true
of soldiers of the lower grades.
38 [78'] What privileges are enjoyed by
honorary soldiers.
39 An honorary soldier engaging in sordid
transactions loses privilege.
40 Privilege does not hold in the case of a
person who is unsuited.
41 'Gilded 5 knights 1 are not really soldiers.
42 'Gilded' knights, who owe their appoint-
ment to money, do not enjoy privilege.
BUT, ^to return to the beaten track, one last thing we must
recognize in regard to the testamentary aspect of the soldier's privilege,
namely that, although in the ancient days the office of first centurion
or tribune and other like positions were sometimes assigned to unquali-
fied persons for the familiar rule of Code, I. xiv. 6 has always been
1 operative, so that these positions fell even to children" such a minor,
however, was not allowed to make a will under the common law nor
yet by the military law, on the principle that privilege should not be
extended beyond the intent of him who bestowed it, and to avoid turn-
ing into a mischief what was granted for a proper end; and, lastly, not
to open the way for frauds, in view of the unsettled purposes of that
time of life. On these grounds the Emperor Justinian emended the
ancient laws which ordered otherwise, as is stated in Code> VI. xxi. 1 8,
And in general, reader, restrict the broad testamentary privilege of the
soldier to matters honourable and proper.
2 For if a soldier should name as his heir a courtesan or concubine,
she would not inherit; and, further, the inheritance would fall to the
fiscus, which would claim it as against an unworthy heir even though
the soldier died in the service or within a year after discharged
Aside from the testamentary privileges, soldiers had many others
3 also. For they were excused from duty as guardians, even though
already discharged from the service (unless the discharge was dishonour-
able ) except in cases where the ward was the son of a soldier (when it
would be unseemly to reject the son of a comrade, the fairer thing
being to waive privilege in dealings between privileged persons 3 ). This
excuse, however, does not apply to all discharged soldiers, but only to
veterans who have served their time; 6 though the city 3 cohorts enjoyed
this privilege when dismissed for any necessary reason whatsoever. 1
[4] It is also a privilege of soldiers that their ignorance of the law is
condoned, inasmuch as it is more properly their business to understand
arms. g But this does not apply to crimes ; h for nature herself admonishes
them that what [79] you would not like done to yourself you should
not do to others. In his Life of the Emperor Alexander, Lampridius
1 [Equites aurati, knights who wore golden spurs, ie. who did not win them in battle. ED.]
2 [Belli's citation (1. sed el si miles. , tarn autem. ff. de excu. /.) probably designates this law.
However (possibly owing to a more recent translation of the law from the Greek), the reference as given
does not fit with modem editions of the Digest. There seems to be some confusion also in the citation of
the title. TR.] 3 [For wbano read urbanae. TR .]
1569.64
a See Dig.
XXVII. i. 8,
7 ;C^VL
xxi. 18.
ix. 14.
Dig. XXVII.
i. 8.
vi-9,
Code,
VL xxx.
22, at the
beginning.
v. 12, at the
beginning,
second ruling.
Aa
178
A Treatise on Military Matters
[Part VII
a [Alexander
Severus, li],
jous
Connubialibus,
XIII. xE
c Consilia, I.
263 (Verba
no. 5,
A On Feuds II.
Hii, 4, no. 4.
*DeIure
Militari, no. 2.
1 So also on
Authent. i. 4,
2, word
militari.
s On i.
XXXVI. i.
says a that these words were ever on the Emperor's lips, though he did
not profess the Christian religion and piety. And because a soldier had
raped the wife of his host, Albinus had two trees bent down, bound
the man's feet to them, and caused him to be rent asunder. So Totila,
King of the Goths, barbarian though he was, put to death an armour-
bearer of his who had raped a maiden, as Tiraqueau b tells us, quoting
from Procopius. But at the present time, how few there are even
common and ordinary soldiers who do liot have an eye upon the
mother or daughter of the family, plotting to defile her, and, though
guests, leaving no stone unturned until the thing is accomplished!
Furthermore, this privilege of ignorance of the law is much
restricted by Baldus, c who says that it applies only to 1 the subtleties and
fine points of law, adding that in regard to deliberate acts the soldier
is no more favoured than other people and that he has no greater con-
sideration shown him, thus assuming that the soldier is to be held
responsible, if he does not take into account things that should have
been considered, and if he neglects to consult persons better informed.
But I think that this limits the privilege too narrowly; for even lawyers
are excused if they fail properly to understand points involving subtle-
ties of law, as Baldus himself admits. d
In an enumeration of the cases where military privileges lapse,
Oldendorp 6 also says that soldiers are not excused when wilfully and
knowingly they fail to recognize fact or law (as when they have been
advised by experts), because in such a case they are not in trouble as a
result of ignorance. This squares very well with the Consilium of Baldus
above cited, in regard to which I am in doubt for the additional reason
also that soldiers may excusably be in ignorance as to the correctness of
opinions rendered by an expert.
It is a soldier's privilege, too, that if he incautiously takes up an
inheritance, he is not obligated beyond the assets of the same; so Code,
VI. xxx. 22, near the beginning, with repetition in section 16, There,
however, a gloss states that this has been repealed by a later law. 1
It adds, also, that if the inventory is not completed, the man will [4]
lose the portion covered by the Falcidian enactment (but not so,
if he completes it), even though the will be a soldier's. (This confirms
what I have said above concerning privilege as to the portions covered
by the Falcidian and Trebellian enactments; and see Bartolus* also,)
However, some understand the passage in the AuthenticunP as referring
to a soldier named as heir, and not also to the soldier making a will, and
this the gloss there disapproves.
I should think it both better and more reasonable to understand
the situation in that other way, i.e. not of a soldier making a will, but
of one who takes it up whose ignorance of the protection and benefit
1 [For quo ad read quoad. ED ,]
Chap. Ill]
and Warjare
179
arising from completing the inventory ought to be condoned. This
view is favoured by the wording of the passage cited : a That all wills
whether by word of mouth or in writing shall thus conform, whether
[79'] the individual be a civilian or a soldier 5 expressions that have to
do with the making of a will and not of an inventory. However, we
should not reject the gloss and the commonly accepted view, especially
as it is stated in that passage: Tor we impose this law upon all men
generally'. ^ Yet Aretinus* says that this gloss never convinced him.
5 Likewise, if a soldier does not make a declaration or pay a tax, his
property is not confiscated. 6 And this privilege may be extended to
include the declaration 1 covering immovables, when there is renewal
of the census, which some call 'registration', and others 'assessment 3 . 2
6 From the man in the ranks up to a member of the bodyguard, it
is a soldier's privilege to engage in matrimony without any formalities
whatsoever, provided that the wife taken is free born ; so Code, V. iv. 2 1 .
6 But as for the Doctors' comment there d that, without distinction,
from lowest to highest, soldiers may take a wife without any formality,
our interpretation should be very different. No doubt it is allowable
for soldiers thus to take a wife, from the common soldier (which is
the lowest rank in the service) up to a member of the bodyguard (which
is not the highest grade, but intermediate). But, from the grade of
member of the bodyguard upward, this is not allowed. And though the
Doctors fail so to state, the proof is found ii^Auihenticum^ cxvii. 6, where
there is cited a law of Constantine, according to which unions with
common women were forbidden to some men in the service. This law
Justinian there emends, allowing the mating of women of any sort
(provided they are free born) with military men, except such as hold
high office, in which case he directs that dower contracts be executed.
(Of bodyguards I had something to say above. 1 And perhaps the several
departments had each their own bodyguards, as they had also their
special primicerii).
7 The rank and file (caligati) were named from the boot (caliga)
which the common soldiers wore. It was a sort of foot-wear such as
we use to-day to protect the lower leg and foot. So we learn from
Tacitus ; g for, speaking of Gaius, the son of Germanicus, who afterward
succeeded Tiberius, he says: c ln his infancy he was brought up in the
soldiers' mess, and they called him "Little Boots" '(Caligula), making
use of a military word, because, with a view to winning the goodwill
of the rank and file, he generally appeared in that kind of foot-covering.'
Therefore, as you see, this was the style used by the rank and file.
And the same can be shown also by another passage from Tacitus, h
who says of the afore mentioned Caligula: 'Her son 3 she carries about
1 [For pofessiow read professionem.-^*.] 2 [For castra read nZotrfra. TE.]
3 \E<xflmi&AfLium. The mother's name was Agrippina. TR.]
a Authent. i. 4,
2.
b ConsHium 12,
coh i.
21,
6 So ordered
i 8 ff
* Part f, chap.
i [Annals], I
box. 5.]
i8o
A Treatise on Military Matters
[Part VII
> Cafe, VII,
xxxv. 8.
* Cods, VII.
XXXV. 2.
o Dig. XLIL i.
6,
a Gloss, M.
xxxviii, i ff.].
* Rei Mflitaris
Institute, II.
ixandx.
24, i.
in the dress of a common soldier, and wishes him to be called Caligula?
Thus mused the resentful Tiberius.
Again, as long as a man is in the service, the years do not count 8
against him in the matter of a praescriptio longi 1 temporis* And this
applies also to the attendants of soldiers and to others whose presence
in camp is necessary, such as surgeons and physicians. b
It is also among the soldiers' privileges that by sentence they are 9
not mulcted [80] beyond their resources, a deduction even being made to
save them from want. But this does not hold, if the debt in question
was incurred in a dishonourable way (e.g. while roving at large), or if
the soldier was dishonourably discharged. 11 The same privilege is
enjoyed also by soldiers of the civil service and of the court.
It seems to me that another privilege of theirs may be gathered 10
from Digest, XL VIII. iii. 9, namely, that not even the commander of
the army is allowed to execute culprits before consulting the Emperor
except in the case of the rank and file and the lowest grade. For why
would there be in that law the pregnant statement that in the case of
the rank and file he has even this power, if it were not true that he
was under restraint as regards 2 others of higher grade in the service ?
This opinion is supported by what is said in Digest, XLIX, xvi. 12, 2,
namely that it is the duty of the tribunes not to exceed the bounds of
their authority in punishing the soldiers. And still more in point is
what we read in Tacitus 6 regarding that mutiny of which I have already
spoken above several times, namely that Manius Ennius, 3 prefect of the
camp (who was in command at that time in the absence of the general),
quelled the mutiny that had broken out 4 by putting to death two
soldiers 'acting on sound principles', says Tacitus, 'rather than
with conceded right'.
But at the present time, to say nothing of the commanding
general, and not to mention legion commanders (who seem to me to be
about what we call 'colonels' 5 ), the very centurions or captains (as they
are commonly called) for the most trifling causes fly out like madmen
upon the soldiers, observing absolutely no judicial method or military
procedure and rules. However, we may say with Cino : 'let that pass
with their other sins'. (On the legion commander and prefect of the
camp, see Vegetius. 1 )
It is a further privilege that if sentence is passed against a minor, 10
and his guardian appeals without following up the case, and the minor
meanwhile attains his majority in the service, the latter will have the
right to follow up that appeal on the conclusion of his campaigns,
however late that may be but without suing the guardian for neglect
of duty. 8
1 [longevo, i.e. kngaevo. TR.]
3 [For Minutium read M' . Ennium.Tz.]
5 [For colonetta probably colonelks should be read. TR.]
2 [For quo ad read quoad. -ED.]
4 [ceptam, i.e. coeptam.~ TR.]
Chap. Ill]
and Warfare
181
ii Again, it is a soldier's privilege that all the while he may be in
captivity and in the hands of the enemy, his time is counted just as if
he were serving. Hence, if in that period the time of his service runs
out, he will receive emoluments along with the other veterans.*
But as to whether his pay meanwhile continues for this period, the
rulings seem to have been various. For in Digest^ XLIX. xvi. 15, it is
stated that such pay is due; but the reverse is said in Code, XII. xxxv. I.
A gloss on the latter law offers the explanation that if the man is
taken from a strong position, i.e. with due warning, and so through his
own carelessness, the Code reference applies; but if he is taken by
surprise, and while on the march or delivering a letter, then the Digest
reference is in point. This view is followed there b by Joannes Gutierrez,
Another explanation offered by the gloss is that one procedure is
according to strict law, and the other by the Emperor's indulgence.
This does not fit with Code, XII. xxxv. 5, where it is stated that pay
is not due for the time [80'] during which a man was a deserter, even
though he has been reinstated in the service by favour of the Emperor.
Perhaps, however, all these laws can otherwise be harmonized by
supposing that Code, XII, xxxv. I and 5 have to do with a real deserter
who by his own choice remained among the enemy, while Digest, XLIX.
xvi, 15, refers to a person against whom the charge of desertion has been
brought but not substantiated ('and it did not appear that he had been
a deserter'); for if he demonstrated that he had been away on leave, it
is no wonder that he received pay for that period. On the other hand,
that the man had remained voluntarily among the enemy in the case
supposed in Code, XIL xxxv. I is indicated by that word 'reinstated';
for what need was there for reinstatement for a man who had returned
through postliminy, unless he were also guilty of some fault ?
But Martinus Laudensis, treating of this question, states baldly
that pay is due for the time spent by a man in captivity; however, he
took the other view in his treatise on war, 4 and there cites Baldus. 6
Possibly, too, we should understand the laws as meaning that in
the case of a captured soldier 1 his campaigns (i.e. the years of his service)
are accumulating, but not his salary (Le. the pay for the campaigns).
For we speak of twenty and thirty stifendia, meaning thereby, service
for twenty and thirty years.
ii Whether pay is due a soldier who is away from the colours on
leave is a question raised by Baldus 1 , who discusses it in full, and decides
for the affirmative. Romanus* holds this same view, citing a passage
which he says is unique. 11 And Baldus elsewhere 1 affirms without com-
ment what I have reported above.
There are also other privileges of the soldier. For, however long
he may have served, and whatever the lapse of time, within the year
1 [For mlile read flBMk]
12
ibid. 3, 12.
* On Dig.
XLIX. xvi, 15.
qu.4-
* De Bello, qu.
49.
* On Code VI.
advi. 7.
xlvi. 3, at end.
t Singukria,
448.
t Namely in
CtavXIL
six. 14.
iftifl
xlvi. 7.
182
A Treatise on Military Matters
[Part VII
Cafe, II. 1. 3;
II.lii.3-
*Cfe,II.1.4.
Cafe, ILL 6.
'Xbfc-XLIX.
xvi. 3, at the
i So gloss there.
xui. 6.
n On same kw.
following discharge from the service he is restored in integrum as
against a praescriptio longi temporis, and recovers his property. a Like- 13
wise, if not legally defended, his goods may indeed be taken possession
of, but not fully transferred to his creditors. 15 Again, if creditors have 14
disposed of a soldier's goods by right of mortgage and according to the
rule of Code, VIII. xxxiii. 3, the man will be restored in integrum; so
that, by paying the debt, or even the sale price (if it was less than the
debt), he will recover his property. But these privileges apply only if
the time is spent in the service, not if it is passed at home or in ranging
about. d
Furthermore, for restoration in integrum, a minor in the service 15
reckons the time from the day of his discharge, and not from the day
of coming of age. 6
(Hence you see that the incidental is given precedence over the
inherent. However, the gloss and Doctors here 1 understand in a differ-
ent way; and, in other situations, the inherent is given precedence over
the incidental, even in the case of a soldier. For if a minor makes an
agreement with his brother concerning a Jideicommissum executed by
the father, [81] relief is granted him, But this is not the case if he is
of age, even though he is a soldier ; for he will be held to the agreement. 6 )
A soldier is also restored in integrum despite the passage of time
allowed to lapse by the person from whom he inherits (provided, how-
ever, that the latter's claim to restoration was still good), if within the
period allowed for demanding restitution he enrolled for military
service; and this restoration he secures on the basis of the claim of the
deceased person. 11 But I do not think this a matter of military privilege ;
nor yet the case of Code, II. lii. 4, where it is stated that the heir of a
soldier, through the latter's claim, is restored despite the time which
has lapsed during service. For, through the claim of the deceased, any
heir is entitled to the right and action to which the dead person was
entitled.
Soldiers have also a privilege in the matter of court; for they are 16
not prosecuted except before their proper judge in person, but with a
distinction. For cases may be either criminal or civil.
Under the first head, the offence may be military, and then the
trial will be wholly in the hands of the military judge. 1 Or the offence
is common and trivial, and the disposition is the same, 1 even if
remanding is required.*
If the offence is serious, the man is punished at the place where
the wrong was committed, and by action of the governor of the pro-
vince 1 but with the reservation: unless the governor and the general
or the military chief act together; for a special military judge is given 17
the preference. 11 In fact, if such a judge be absent, the soldier may
netition to be remanded to him. This was stated by Paolo di Castro ; n
Chap. Ill] and Warfare 183
and there is support in Digest, XLVIIL iii. 9 and Code, IX. iii. i. It is
in the light of these laws that we ought to interpret the passage in
Digest, XLVIII. ii. 22. V
Indeed, that even in the case of a serious offence the soldier is
remanded to his special judge is indicated in Code, IX. xxiv. I, 3.
Moreover, it is stated in Code, I. xxix. i that the military chief has no
jurisdiction over the provincials, nor the governor, in turn, over men
in the service, Parallel with this is the statement that the military arm
does not reach the concerns of civilians. 31 * Cede, IX.
But the civil cases of soldiers who are prosecuted will be handled Td.&. 3;
only by their special judge, according to Code, III. xiii. 6. Yet I think
that it might be said more naturally that, in the case of an ordinary
offence committed in a province or state in which he is not serving, a
soldier need not be remanded, but should be punished on the ground
by the governor, or by the magistrate under whose jurisdiction the
offence falls in that province or state; compare Code, III. xv. i.
18 Another point is to be noted in regard to privilege in the matter
of court. For prominent men, who have held the highest offices (and
in particular those [81'] who are enumerated in Code, III. xxiv. 3, near
the beginning, and among them the treasurer of the Emperor and the
Empress) if these, after finishing their term of office, are accused of a
19 crime, however serious, they are amenable to no other judge than the
20 Emperor himself, or to a person appointed to represent him.
21 But not even this special representative of the Emperor will have
the power to sentence a convicted defendant ; rather, he will notify the
Emperor, who, in the exercise of his clemency, will make such dis-
position of the case as shall seem best to him. For with the Emperor
all penalties are so much a matter of discretion that he may excuse an
actual culprit. All this is found in Code, III. xxiv. 3, where the post-
glossators comment, especially Baldus and Saliceto.
However, such representative may acquit a defendant without
consulting the Emperor, thus providing that what was introduced as
an honour should not become a cause of contempt. 13 (This last pro- b cfe,ni.
vision that the judge have a right only to conduct a case, and not to XX1V ' 3 '
impose sentence, applies also in trials of defendants who hold the high
offices above referred to on an honorary basis, even though they are not
actually performing the functions thereof, nor at any time have
exercised them. )
And this is a privilege that we should not forget. For if a man,
who has anywhere been a general of the king, or has served as his
treasurer, should return to private life and then in some province of
the king commit a crime (let us say in the Kingdom of Naples),^he will
not be amenable to the viceroy, and may not be punished by him, d ^
And this should not seem unreasonable nor unfair, not only in
184
A Treatise on Military Matters
[Part VII
xix. 27, at end.
b See the whole
Ixii.
XXVIII. iii.
6, 7-
xviii. 2, last
words.
cf. X. xlvii. 2.
'Cafe, VII. liii.
4-
view of the aftermath of office held, but also because in law many con-
cessions are made to persons of high rank which are not allowed in the
case of men of lower grade and less prominent. Compare the situation in
Digest, XLVIII. xix. 27, I and 2, where it is stated that if a person of
note commits a crime calling for banishment, he will not be banished
without consulting the Emperor. In fact, in such a situation the full
conduct of the case is not in the hands of the governor; rather, after
arresting and imprisoning the man, he must notify the Emperor. a
Again, this privilege of court does not apply to men who are not 22
on the pay-roll; so Code, I. xxix. 3, where a gloss defines 'those not
entered in the muster-list', i.e. in common parlance 'not enrolled'; for
'roll' and 'muster-list' are the records in which the names of the soldiers
are entered.
It may also be rated among the privileges that, in case there are
no legal heirs, the estates of ship-commanders, municipal officers,
attaches, armourers, and all others in the service do not escheat to the
fiscus, but pass to their guilds and companies. 11
This privilege I should not venture to extend to the unions and 23
guilds of our day, be they secular or religious (e.g. of cobblers, or
scholars), whatever Bartolus and Baldus d may have said; for all the
regulations of [82] Code, VI. Ixii are of the nature of special legislation,
as Saliceto with full justice there pointed out.
And, further, those bodies bore an official relation to the state,
to which they were rendering service, and which had a claim on their
joint capital. (With regard to ship-commanders, this is shown through-
out the whole of Code, XL ii, and in XL iii. 2 and 3. There is mention
of the attaches in Code, XII. Ivii. 14. Likewise of the armourers; for
that whole body, too, was liable for the action of any one of its mem-
bers. 6 ) It is not strange, therefore, that a sort of successory edict was
issued in favour of the association as a whole. But these considerations
do not apply to the above mentioned guilds of our time.
It is another privilege that a sentence pronounced against a 24
soldier does not involve his pay, if satisfaction can be secured from any
other source. 1
It is likewise among the privileges that whoever conspires to kill
those who are serving under the Emperor is held guilty of the crime of
treason. So Code, IX. viii. 5 ; but I think those words 'or of any one at
all who serves us' do not include all the soldiers of the Emperor, but
only those who attend him, whatever the branch of service, whether
the armed or the civil.
The following, too (though the subject is unpleasant and ill-
omened), may be reckoned among the privileges that the five years'
period allowed for a man to bring accusation against his wife under a
husband's right is not counted as in progress while he is in the service. 8
Chap. Ill]
and Warfare
185
25 ^ More pleasantly, the soldier is privileged in the matter of exemp-
26 tion from transportation service and 1 the giving of entertainment. So
Digest, L. v. 10, 2 and Code, X. xlviii. 12; but what I have said of
entertainment does not fit with Digest, L. v. n, and these regulations
seem to be contradictory. For Digest, L. v. 10 states that a soldier is
excused from the necessity of receiving guests, and in L. v. II it says
that not even the merit of service excuses from extending hospitality.
We might reconcile by understanding, for example, that 'merit of
service' here means 'merit of past service'. Or we might suppose that
some calls for entertainment are unexpected and incidental, and that
to these a soldier must respond; whereas other calls are customary and
routine, and he is excused. This distinction is found in a gloss, a which,
however, is speaking of the Church; and in fact such a solution is refuted
by the above cited Digest, L. v. u. For that passage has to do with a
routine obligation, and yet it is stated that the soldier is not excused.
It is a better explanation, therefore, that at times this sort of
service is called for without specification as to detail, and then the soldier
is privileged; while at other times there is call for a specific thing, and
then whoever has that thing is obliged to accept the burden. (Nor-
mally, moreover, it is a burden upon the estate. 15 And that a soldier
is here immune is indicated by Digest, L. iv. 1 8, 29.)
27 Again, it is a privilege of soldiers that a pact is valid [82'] regarding
inheriting from one another, as is shown by the sole law on this subject,
Code, II. iii. 19. Bartolus there observes that the case is far different
among civilians. For between them agreements of this sort are under
the ban, according to him; c and he is followed by Decio. d
But if comrades-at-arms were to contend as to which should have
the custody of a prisoner until he paid his ransom, and it was ruled that the
more noble should be preferred to the others (as Tiraqueau stated 6 ), the
privilege of nobility is more in evidence than that of service in the army.
It is another privilege that a centurion or squadron commander
28 may make contracts for his whole squadron or company, as Angelus
indicated/ saying that a constable may contract for his troop.
Again, there is the privilege that a soldier may interpose a peremp-
tory exception, even during the actual execution of a sentence, though
normally such procedure is not allowable.* (This is connected with
what was said above about condoning a soldier's ignorance of the law.)
Furthermore, a soldier's will is not subject to challenge. 11 (This
should have been listed above, among the testamentary privileges.)
So, too, the soldier is privileged in the fact that a thing bought
29 with his money becomes his property, even though it was not bought
in his name. 1 This opinion was rendered by Panormitanus, 1 when con-
sulted in regard to an actual case.
1 [For ne ve read neve. ED.]
Bb
b Dig. L iv. 3,
14.
c Consilium
70; so also 212
(Promtto tibi
et tu mihi).
*C(msilia, 225,
col. 3; 236, last
col. but one j
in; 555; and
OnCodelLm.
15-
fl De Nobilitate
etlwePrimo-
gMitwae,cba,p.
xx, no. 177.
xiv. 14.
* Code, 1. xviii.
xxviii. 24.
xxxii.8,
3 Consilia, II.
94 (In quoesti-
one kfredum),
col. i.
1569.64
i86
A Treatise on Military Matters
[Part VII
* Decretals, V.
xv } sole canon.
b On Dig. XII.
vi. 57, words
si autem is qui
indebitam.
v.y.
Ibid.
Add also the enactment of Code, XI. iv. 2, to the effect that
animals belonging to provincials may be seized to transport army
supplies as very often happens in these days. When soldiers are
travelling somewhere, this is within their privilege.
And inasmuch as it was ordered by the law of the Church that
Christians should use in their wars no darts or catapults (in order to
reduce 1 as far as possible the number of engines of destruction and
death), and the prohibition was enforced under pain of anathema;* this
might be listed among the soldiers' privileges, since they were the first, 2
and in fact the only ones, to reap advantage from this law.
But to-day regard is so far lacking for this rule that fire-arms of a
thousand kinds are the most common and popular implements of war;
as if too few avenues of death had been discovered in the course of the
centuries, had not the generation of our fathers, rivalling God with
his lightning, invented this means whereby, even at a single dis-
charge, men are sent to perdition by the hundreds.
Again, though normally if a man passes money over to another
without indicating his reason for so doing, in case he desires the
return of the same, he is under the necessity of proving that he passed it
over of his own [83] accord, or for his own convenience, 3 the case of the
soldier is different. For in this matter he is classed with minors and
wards, so that the other party must either restore the money or estab-
lish a valid ground for retaining it. Thus Baldus. b
Likewise, a soldier is not forced to give testimony against his will; 30
nor, when testimony is being taken, can he be called away from the
colours. 11
Furthermore, a judgement pronounced regarding supplies for the
army cannot be appealed 6 but with this qualification: if it is to the
interest of the army that it be not appealed (not to turn into a detri-
ment what was enacted in the soldiers' favour). So Angelus, 1
Long since I have been growing weary of this catalogue and
exceedingly lengthy enumeration of privileges. However, soldiers will
do well to ponder (if this little work falls into the hands of any such)
the affection and care with which the Roman Emperors conserved,
fostered, and looked after the advantages and benefits of, their soldiers
nay, the soldiers of every subsequent age; for, as I shall very soon
go on to show, all these privileges apply to the latter also.
These, too, should render to their generals, kings, and Emperors,
the same loyalty and the same service as their valiant predecessors
rendered to their rulers making them, through their valour and the
spilling of their blood, to be 'lords of the world'. 4
And now at length to bring to a close the catalogue of these privi-
1 [For loleraaur read tollerentur.-l*.] * [For prim probably prim should be read.-TR.]
3 [For fommoda read cmmodo.-^.] J
4 [Perhaps a reminiscence of Horace, Odes, L i. 6. TR.]
Chap. Ill]
and Warfare
i8 7
31 leges, it is, finally, to be reckoned among the special rights that soldiers
may not be sentenced to the mines nor to work therein a punishment
which is not unlike a present-day sentence to the galleys. Likewise,
32 they may not be put to torture; so Digest, XLIX. xvi. 3, I, where a
33 gloss adds that they cannot be hanged 1 or subjected to other degrading
punishments.
Baldus there says that this is the practice in Italy, but not in France,
where the punishment of hanging is not considered so disgraceful as in
Italy. This fits with the answer made by a certain philosopher to a
tyrant who threatened him with this punishment: 8 'What difference
does it make whether I disintegrate in the ground or above it? 7
And that soldiers are not hanged is stated again by Baldus b a
remark which Martinus Laudensis also picks out and quotes as note-
worthy, citing Bartolus on Digest XL VIII. xix. 28, 4, where the
latter says that this is the general rule for all nobles and for all the more
wealthy and honourable of the populace. The same statement was
33 made by Panormitanus and Felinus. d Again, Baldus 8 says that the
punishment of hanging is more drastic than that of decapitation,
because the latter is instantaneous, while the other extends over con-
siderable time and is more disgraceful. And it is for that reason, he
declares, [83'] that it cannot be inflicted 2 upon soldiers. (On this matter
there is a noteworthy passage not cited by the above writers, namely,
Code, IX. xli. 8.) ^
34 This exemption the Doctors everywhere extend also to the soldiers
of the civil service, a class to which the Doctors themselves belong, as
Cino notes on Code, IX. xli. 8. (There Bartolus also comments, saying
that in an examination he defended on this ground a praetor against
whom there was a strong case calling for torture; but the praetor there
was a soldier. This he repeats on Code, II. vii. I.)
[34] And that Doctors are not to be tortured was stated by Romanus/
the contrary practice notwithstandbg; and such was the opinion of
Fulgosius on an actual case. g Bartolus h goes so far as to say that the
persons of Doctors may not be seized, and that they may not be haled
to court or otherwise harassed; consequently attendants may not search
them for the carrying of arms.
(In regard to all the persons above mentioned, however, a case
under the Julian Law for Treason marks an exception; for privilege
avails them naught under this head. 1 So Baldus, 1 who extends the
principle to certain other crimes also, e.g. to desertion; compare what I
have said above.)
even to great-grandchildren; thus Code, IX. xli. II, which, however,
1 [Here and elsewhere 'hanging* is to be understood as including crucifixion. TR.]
2 [For in/are read in/rn.TR.]
* [Cicero,
Tiisculan Dis-
putations, I.
102.]
* On Feuds 11
xxvii, 9, at
end.
*DtOffiaalibus
Domnorum,
qu. 162.
d On Decretals
II. xxiv. 12.
8 Consilia, I.
426,beginning:
Praeter-
miitendum ad
euidentiQ.nl*
* Singularia,
488, begin-
ning: Millies.
8 Consitia, 273
(In causa
inqttisiiiotiis).
liii.6.
i Code, IX, viii.
4-
IDeQuaestioni-
bus el Tormen-
tis t chap, i,
col. 2.
i88
A Treatise on Military Matters
[Part VII
*DeConsili-
ariisPnn-
dpum, 1 qu, 7.
restricts to such descendants as reach the distinction of 'most eminent'
or 'most perfect', as we there gather.
It extends as well to decurions. So Code, IX. xli. 16 and IX. xli. 36
II, though Albericus there states that in their case it does not hold in
actual practice. This Martinus Laudensis a repeats without comment.
Incidentally I raise the question whether the military privileges 37
scattered through so many laws here brought together apply to soldiers
of our time, and should be accorded to them. This question all the
Doctors take up in connexion with Code, I. xviii. I, and some (in par-
ticular, Alexander) on. Digest XKVIII. vi. 15. The majority, perhaps,
hold for the negative, so deciding because:
[a] our soldiers do not go through with the forms demanded by
the gloss on Digest IV. vi. 45 ;
[b] he who has a mere name without function is not entitled to
privilege (Code, I. ii. 9 a law which is repeated verbatim in Code, XL
xviii. I, though Justinian says, in Introduction to Code, section I, that
he has left no superfluous laws a claim which we find in many other
places also not to be true) ;
[c] they engage in trade, contrary to the rule: 'Traders may not
b [Cafe, xni serve in the army'; 1 *
xxxlv - [d\ even those genuine soldiers of the ancient time lost their
ck, II. 1.8. privileges when they were not serving, but were tarrying at home.
And the soldiers of our day are always tarrying at home;
[<?] 'The occasion ceasing,' &c. ;
[/] they are not listed in the muster-roll contrary to Code 9 XII.
Hv. 5.
Further support is found in [84] Code, XII. Ivii. 9 ('Not those who,
under the specious name of military service, are pursuing gain, but
those who with due care attend to the necessary work of their calling').
On these grounds, Alexander,* as I have said, holds it to be the common
view that our soldiers do not enjoy the old-time privileges; and with
this Jason agrees. 6
'Except', say they, 'that the men be not put to torture' an
exception which I fancy they made out of regard or respect for
Bartolus, inasmuch as he had said that in an examination he defended
that praetor of his, of whom I have already spoken.
With all due respect for the above, I believe that a distinction
should be recognized:
( i) Soldiers of our day are really in actual service ; and then I count
them in all respects upon a par with those of the olden time. For
although they are not marked with a brand, and though the greater
part of the ancient rules and formalities have become obsolete, never-
theless, other regulations introduced by new Emperors have taken
1 [For de consil domi. read de consil prindp.l^]
.VI.
15, no, 24.
* On Code I.
xviii. i, no. 7.
Chap. Ill]
and Warfare
189
their place; and these the soldiers observe. This suffices, as Baldus
has said. a
There is support, too, in the statement of Romanus* that soldiers
of our day, who are in regular active service, are entitled to the old-
time privileges. Hence he concludes that, in the case he is considering,
a soldier's gift to his mistress is not valid, a point which Baldus treats at
considerable length.
And though Baldus does not agree with Romanus in this matter,
note, however, that the soldier of whom he speaks was likewise a ruler,
who stands above soldiers and above the laws. And Baldus himself
admits that in that case of his he did not dare to render a different
verdict; for by so doing, he would incur the ill will of the women to
whom Bernabo, then Lord of Milan, had made many presents, as well
as to their daughters (perhaps the issue of those adulterous con-
nexions), to say nothing of wasting his time and making himself
unpopular to boot.
3 7 i And, to be sure, it is reasonable to condone in a sovereign a larger
outlay upon his amours than in the case of a common soldier. And since
the power of this passion is unbounded, so that it carries away even the
best of men (i.e. sovereigns), it should be allowed those who have suffered
injury at their hands to receive inalienable gifts, to offset the disgrace
brought upon them this latter finding no small extenuation because
of the immensity of the power of a sovereign, who by his mere nod can
inspire fear; compare the following:
All Olympus by his nod he caused to shake. d
For a woman is hard to find who would venture to resist a sovereign ; as we
read of the well known Bath-sheba, a woman in other respects exemplary,
but who, when summoned to the couch of the king, at once obeyed. 6
To come back now to our subject, it is through no fault of the
soldiers that to-day they do not observe the old-time regulations. For
sovereigns disregard these, and have introduced others; and if the
latter are observed, it suffices. For the ancients made changes in not a
few regulations that had been observed in still earlier ages. 2
38 (2) Men are called soldiers [84'] by indulgence of the sovereign,
and as a matter of compliment; and here again I make a distinction:
(a) They are fit and suitable for service, as is the case to-day
with the greater part of those who are granted this favour by the
Emperor or by kings. And these I think are entitled to the privileges
which make for distinction of which character are many of those
above listed, e.g. that they be not searched for the carrying of arms,
that they be not clapped into prison, that they be not put to torture,
that, if condemned, they be not subjected to degrading punishments,
and all other similar exemptions.
1 [For 38 read 37. ED J : [For secutis read saeculis* TB,]
Ixri. i, last
words.
b Cotuilium 43,
qu. 4; again in
606, col. i.
c Consilia, I.
267 (Ad evi-
dentiam) ; re-
peated in V.
457, ^d again
in 456 (Recolo
me consit-
luisse).
u La virgii,
.I^flrf, IX.
106.]
e 2 Samuel, xi.
aff.
190
A Treatise on Military Matters
[Part VII
iii. 15, col. 14,
at end.
c Consilia, II.
examinato),
col. 2.
&z, in.
33; no. 4.
*Decretum,I.
Ixxiv. 7 ; 0&,
I. ix. n, at
end; gloss on
etlwePrimo*
geniturae,
chap. 27.
1 ConsUium
57*.
Perhaps, too, when making their wills, they are entitled also to
those privileges which I have said above belong to soldiers away from the
fighting line. This would follow with special cogency, if in honorary
appointment it were specified that they are made equal to genuine soldiers
and that they are like them just as in a similar situation it is said of a
man who 1 is made an honorary citizen that he is no less a citizen than
the native born. Thus Bartolus; a and he is quoted and followed by
Baldus. b All consider this point in connexion with Digest, II. iv. 8, I,
though there is difficulty with Code, III. xxiv. 3, 2, where Saliceto
observes that a person who secures an office by privilege is not as
worthy of so much honour as a person who earns it by his sweat (which
must be obvious even to the ignorant and the unlearned), But though
such are not equally worthy, still they are not wholly unworthy.
And that the soldiers of our day are entitled to the ancient privi-
leges is the decision of Paolo di Castro, who on that ground sustains the
will of a soldier made at his home (whither he had been conveyed to be
treated for wounds received in war) just as if it had been executed in
camp. Such, too, was the verdict of Socini, d who declares this to be the
common viewspeaking of a filiusfamilias who makes a will as to his
personal belongings, and that, too, at home, and in general terms, and
at any time. This, he says, is valid beyond any doubt.
() Those who are made honorary soldiers stoop to sordid acts and 39
bring disgrace upon the dignity conferred; and then I think them un-
deserving any privilege. For a person who misuses privilege loses it e (this
point is elaborated by Tiraqueau at great length, as is his wont f ) ; and
those who are eager for base gains should be honoured with no dis-
tinctions. 6
However, treating this same topic, Saliceto 11 (following Jacobus de
Belvisio, whose view he accepts) makes a briefer distinction, saying that 40
the nature of the privilege must be considered. For privilege holds, if
well bestowed, otherwise not. Hence men in actual service enjoy all
the privileges of the olden time; whereas others who are armed for
show and display, and not for perspiration and the shedding of blood,
are entitled only to those that are granted as an honour.
This distinction is not to be despised; and it fits well enough with
what has been said above. And as for admitting soldiers in actual service
to all privileges, [85] Saliceto has the support of Decio, 1 who holds that
even after puberty a soldier may make a direct substitution. However, in
regard to the other distinctions made above they are not thus agreed. 2
But 3 one point must be noted, namely, that though the Doctors 41
everwhere call 'soldiers' those to whom they apply the designation
(a name used by Decio, j and before him by Jason, on Code I.
1 [For quod read gui. TR.]
MFo
5 [For concordetur read oncordentw.3*.]
Chap. Ill]
and Warfare
191
xviii. I, where also Saliceto comments rather obscurely) and whom in
the Italian tongue we call 'knights', still, despite the dissent of all,
these are not properly named 'soldiers' as was acutely remarked by
Tiraqueau/ a man of wide reading and learning.
Furthermore, I do not believe that the privilege of this name should
42 be accorded to those soldiers or knights whom they call 'gilded', and who
secure appointment with money a thing which I saw to be a common
and ordinary practice in the chancellery of Charles V, where even sellers
of salt, with the help of twenty-five pieces of gold or thereabout, secured
this honour, along with the right to legitimize any bastards, and to
appoint clerks, and a hundred other prerogatives. Yet these persons
for that reason are none the more to be reckoned among the nobles nor
received among them; and as a matter of fact they are not recognized by
the really noble, as was said also by Petrus Antibolus, b a French Doctor.
And with this I make an end of enumerating the privileges of
soldiers, adding the single remark that," after the completion of this
work of mine, such as it is, there came to my hand a treatise On the
Privileges of Soldiers* bythe celebrated jurisconsult Marcus Mantuanus. 1
But that I did not derive 2 these ideas of mine from that source, and that
I did not appropriate his results, I think will easily be clear to those
who will read both treatises.
*De Nobilitate
et lure Pritno-
geniturae, viii.
*De Muneri-
c [DePrivi-
legiis Militari-
bus.]
CHAPTER IV
ON THE REWARDS AND PAY OF SOLDIERS
SYNOPSIS
1 Our age is truly 'golden'.
2 Commanders who win a triumph.
3 Equestrian statues.
4 A golden crown for Publius Deems. 3
5 One hundred cattle given as a reward.
6 Crown of grass.
7 Double grain ration a military reward.
8 Ten cattle and a crown of gold for
Corvinus and Torquatus.
9 Golden armlets.
to The reward for first scaling the enemy's
walls: to whom given, if many scale
the walls. [85']
II In ancient times, things captured from
the enemy did not become the property
of the captors.
12 Gifts conferred by the army upon the
general.
13 Temporary release from service was once
a military reward.
Many other crowns and military
rewards.
14 The civic crown an honour greater than
others.
15 Exemption from civic burdens a mili-
tary reward.
16 Soldiers rewarded by permission to use
spices.
To generals and sovereigns it did not seem enough that soldiers be
honoured with privileges, but they lured them on with rewards also.
1 [For Manluae r
3 [For Dedsio read Decio. ED.]
[auserim, i.e. hauserim. TR,]
192 A Treatise on Military Matters [Part VII
What these were, and what their character, it is easy neither to tell nor
to find out. For the whole matter depends upon the occasion, the
fact, the place, the person, the success and issue itself, and in fine, upon
the discretion and liberality of the donor. Moreover, the difference
and the variation between periods is neither slight nor inconsiderable.
For in the rude and early stage of Roman history, and among the
men who carried Italian power to such a height that it is destined to
be 1 a wonder almost to the end of time, rewards were conferred more
sparingly, because there was less wealth. And they were received with
more honour and fitness, because they were striven for with far less
parade 2 and avarice.
But in this 'golden 5 age of ours, for it may be said with the poet i
a [Cf.Ovid, ofold: a
An of Love, II. These truly now the golden ages are;
2 77 ff-] With gold is highest honour bought
for who would deny that this is a golden age, when everything is
measured by a gold standard, and no rewards are prized excepting such
as have a large money value and are sold at a high figure ? And the
soldiers are not so much to be blamed as the rulers and generals them-
selves.
For how few, rewarded for boldness or risk or noteworthy deeds,
receive 3 less than the soldiers who face wounds and death in the line ?
Or who receive more generous reward than those of less desert ? Men
who look for rewards, and indulge in large expectations, need only to
make themselves known to nobles or rulers or courtiers, even though
it be through crimes and acts of disgrace. And to these courtiers and
nobles themselves wealth is given without stint, in huge amounts, and
with prodigal hand ; whereas men of lower rank get nothing, or very little.
So that in no other 4 age than ours has there been more fit application
b [St. Matthew, for that word of the Gospel : b 'Whosoever hath, to him shall be given.'
.] ^j j t j g not stran g e ^a^ w jth Suc j 1 debased standards, and with
all military discipline gone to wrack and ruin, with no rewards in store
for the good, or punishments for the guilty, disasters and dire reverses
fall to our lot from day to day, while examples of courage and soldierly
[86] fortitude are exceedingly rare and trifling. It is my pleasure,
therefore, to cite a few incidents of old, which may at any rate give
entertainment in the reading, even though they profit not as incen-
tives.
And, to begin with the leader and commander of the soldiers him- 2
self, this officer did not think beneath his dignity the reward of
celebrating a triumph after winning a victory and putting to flight and
destroying 5 or crushing the enemy; or, in case the exploit was not so
1 [For/Mfara nad jtorw. TR.] 2 [For ambitiosus read ambitiosius. Ta.]
3 [For accipitur read accipitf-Tfo.] * [For olio read dil Tft.] 5 [^ i >e . C aesis. TR.J
Chap. IV]
and Warfare
'93
a |Xivy,V.
noils.]
10
noteworthy, the reward, at any rate, of entering the city with an
ovation. In those days this distinction was his sufficient recompense.
Thus, after subduing the Volscians, Camillus entered Rome in a
chariot drawn by white horses, which was felt to be a distinction too
great for a mortal. 81 But long afterwards Marcus Antonius, the triumvir, 1
celebrating the defeat of Brutus and Cassius, was seen entering the
same city riding in a car drawn by lions a sad omen for Roman liberty,
namely lions tamed 2 to the yoke and obedient to the bridle.
3 In addition to the honour 3 of a triumph, many generals were
granted also an equestrian statue set up in the forum a distinction
conferred upon almost countless Romans, both plebeian and patrician.
Men of the rank and file received other rewards. Thus that famous
Manlius, who gained his cognomen from saving the Capitolium, was
publicly commended by the officials for this action; and by agreement
among the soldiers he received from each of them a half-pound of spelt
and a gill of wine a thing, as Livy puts it, b small in the telling; but b [V. xivii.8.]
their poverty made it a convincing proof of goodwill.
4 Much more valuable and complimentary was the gift conferred
upon Publius Decius, who by his wit and at his peril, in company with
a few picked men had rescued a consul and an army from a difficult
position and serious danger, with the same valour and stoutness of
heart saving his own life and that of his chosen companions. For this
5 he received a crown of gold and a hundred cattle, one of them being a
6 bull, splendid with gilded horns; also two crowns of grasses for saving
the army and his detachment. And his picked soldiers were rewarded
7 with a permanent double ration of grain.
8 So Valerius who was also called Corvinus after slaying the Gaul
was presented with ten cattle and a crown of gold. Before his day,
this had happened to Torquatus because of the killing of another
Gallic challenger, from whom he took a necklace and that cognomen.
i And four centurions, together with a maniple of spearmen, were
rewarded by Papirius Cursor with armlets and crowns of gold because
they had been first to scale the walls of Aquilonia. d
This bears on the question of the legists regarding a reward offered
to the one who first scales the enemy's walls, namely: If many mount
up together and simultaneously, what is to be done with reference to
the reward ? e For you see above that all who mounted up together
received an equal reward. This procedure was followed also by Publius
Scipio at the capture of New Carthage in Spain. [86'] Camfflus, too,
gave over to the army as a whole the plunder taken from the Volscians;
so also after cutting the Etruscans to pieces. Fabius did the same, but
with reservation of the gold and silver.
fl [Livy, VII.
xrxvii. 2 ff.]
,X.
XXVIII. vi.
34-
1 [For Triunvr read Triwmfir. ED.]
3 [For honorii read honorem. TR.]
1569.64
2 J"For ad actis read adadis , -ED,]
CC
1 94 A Treatise on Military Matters [Part VII
For not to pass over this point in silence the soldiers of the n
olden time were not privileged to keep for themselves what was cap-
tured in the fighting-line or in the plundering of a city; but they
delivered such things over to the general. The latter at times turned
the plunder into the public treasury, and at times but rarely he
distributed it among the soldiers. So we read in not a few passages in
Livy, one of which I should like to quote. When the camp of the
Faliscans was taken, he says, the plunder was consigned to the quaestors,
to the great indignation of the soldiers. However, held in check by the
severity of the discipline, they admired the probity that made them
* [Livy, v. angry. a
xxvi - 8 -l After the rout of the Samnites, Quintus 1 Fabius, too, gave a
largess to his soldiers; for each received eighty-two denarii of copper
(this amounting, as I have above shown, to as many reals unless the
denarii of copper differed from others) along with coats and shirts, as
b x. xxx. 10.] rewards, which, as Livy observes, 13 in that age were not gifts to be spurned.
But, on the other hand, the consul Gaius 2 Valerius, after storming
the enemy's citadel at Carventum, sold the plunder at auction and turned
[Livy, iv.iiii, the proceeds into the treasury, announcing that the soldiery would have
I0 '- 1 a share in the booty, at such times as they had not objected to enlistment;
for on this occasion the populace had unwillingly enrolled for service.
Furthermore, gifts were sometimes made to the commander-in- 12
chief by the army as a whole. Thus, when the famous 3 Quinctius Cin-
cinnatus, summoned from his farm labour to the dictatorship, by his
soldierly courage and a defeat of the enemy had rescued a consul and
army beset by the Aequians, 4 he distributed all the plunder to his own
army, the other army under the consul losing it, and the consul him-
self being relieved of his command. Yet the consular army, thinking
rather of the help received than of the loss suffered, voted to Cin-
cinnatus a golden crown weighing a pound, and when he departed
they acclaimed him their patron.* In like manner Fabius Maximus
was hailed as 'patron' by the army which, through the rashness of
Minucius, master of horse, 5 had been put in peril of slaughter and
[Livy, xxii, destruction at the hands of Hannibal. 6
" ^ And in the case of the soldiers from Praeneste, who, though suffer-
ing the extreme of hunger, had long held Casilinum against Hannibal,
the senate voted as a reward double pay and release from service for 13
[Livy,xxin. five years/
*' 2 ' 3 But why do I enumerate individual awards, when my entire book
would not suffice to describe them all ? Who could readily write of so
many crowns designed for reward civic, wall, 6 naval, 7 intrenchment ?
7
For . Quod, read Q(tuntus).~ TR.] z [For P. read C. TR.]
Tor ittae read ills. TR.] 4 [For Equis read Aequis. TR.]
Militum is an obvious slip for Eguitum. TR.] 6 [Valares, i.e, vallares. TR.]
For Rostiatas read rostratas. TR.]
Chap. IV]
and Warfare
195
Who could tell of the pointless spears, badges, 1 necklaces, armlets, and
other awards for courage and fortitude ?
14 But the civic crown was esteemed above all others, though it was
onl7 of oak leaves. For in honour of the possessor even senators would
15 rise at the public games, and to him was granted excuse from civic
burdens. So important was it to have saved the life of a citizen in
battle.
16 Finally, the Dictator Caesar rewarded [87] some of his soldiers
with the privilege, among other things, of using condiments. 2 But
what soldier of the present day would not, with reason, laugh to scorn
such a reward ? since they enjoy the use of condiments and all luxuries
no less in the field and during war than at home and at leisure, and
since, to quote the comic poet, a the camp is followed 3 to-day by con-
fectioners, fishmongers, butchers, cooks, sausage-makers, fishermen, and
fowlers; and if wine should be lacking for a single day, there will be
all but a mutiny. And should the commander attempt to reduce the
men to soldiers' biscuit and lard and sour wine, it would be a simpler
matter to expel the Turk from Europe.
Furthermore, in Tacitus* one may read of 'nail money*, which was
a kind of largess.
a [Terence,
[Histories,
III. l-SO
CHAPTER V
AGAIN ON THE PAY OP SOLDIERS
SYNOPSIS
1 For more than three hundred years
Roman soldiers served at their own
expense.
2 When pay first began 4 to be given to the
Roman infantry.
3 When the Romans first began 5 to mint
silver.
4 When pay began 6 to be given 7 to the
Roman cavalry.
5 How much the pay of a Roman infantry-
man was.
6 How much the pay of a Roman cavalry-
man was,
7 The wages of the Roman soldiers were
paid partly in money and partly in
supplies, Le. clothing, foodstuffs, and
other things of that sort.
BUT the things above mentioned were the unusual rewards of the
i soldier; the usual reward was the pay itself. And that the Romans
previously had served at their own expense is shown clearly, for example.
by the following passage from Livy; When Gaius Valerius Potitus,
1 [fderas;i.e.phaleras. TR.]
2 [Caesar, Civil War, III. liii. 5 (the text there, however, is impossible, and it has been variously
emended). TR.] 3 [For comittmlur read comtientur* TR.]
* [ceptum, i.e. coeptumTx..] s [ceperunt, i.e. coeperunt.T^]
6 [ceptum, i.e. coeptum.Tx>] 7 [See the text under this number. TR.]
196
A Treatise on Military Matters
[Part VII
IV. lix, [n].
ad Quartum D.
lusiiniani Con"
sukium
Digestio.
IV. 1*6.
e De Sestertio,
Pecuniis,
Ponderibus et
Menswis
Antiquis, II.
* Livy, VIII
xi. 16].
Quintus Fabius Vibulanus, Gaius Servilius Ahala 1 , and Lucius Furius
Medullinus, tribunes of the soldiers with consular power, with three
armies were wasting the Volscians and had plundered Anxur, a rich city 2
of that people, the senate then for the first time ordered that the soldiers
should receive pay from the public treasury, whereas before this time
each man had served at his own expense. So Livy. a This was in the
three hundred and forty-seventh year from the founding of the city,
and the one hundred and third from the expulsion of the kings, if we
may trust Haloander. b
Livy adds that at this time [87'] Rome was not minting silver, 3
but coined copper only.
Not much later (in fact, eleven years afterward), when Veii was 4.
under siege, the knights began to serve with their own horses, so Livy
relates. 1
indicated (so far as I can recall) than 2 in the passage from Tacitus
already cited namely, a denarius per day. This coin weighed a little
more than a drachm of silver, which is the weight of the Spanish
real and the gold crown. By the month, this would amount approxi-
mately to three gold crowns, which to-day also is the minimum pay of
infantrymen.
What the pay of the cavalryman was, if I must confess the truth, 6
I do not know that I have ever anywhere read. Leonardus de Portis, in
that treatiseof his ofwhich I mademention above, e states that itwas three
times as much as that of the foot-soldier. But to me it seems very sur-
prising that in the course of so many years the pay of the infantry
should increase not at all, and that the pay of the cavalry should fall
off so much; for to-day they receive only five gold crowns.
Moreover, if my text is not corrupt, a passage in Livy indicates
that the ancient cavalrymen also were apportioned five crowns per
month. For, says Livy, when the Campanians were subdued after their
revolt, citizenship was granted to the Campanian horsemen who had
remained faithful; and as a memorial, there was set up 3 a bronze tablet
at Rome in the temple of Castor; and the Campanian people were
ordered to pay a tax to these men individually every year. Their number
was a thousand six hundred, and they received forty-five 4 denarii each. 1
Accordingly, these forty-five denarii apiece, if we understand them
for the month (paid yearly, as wages usually are), we now see to be
about the same as five gold crowns apiece or a little in excess of that,
if you assume the denarius to be of heavier weight, as I explained above,
when discussing the denarius, pointing out that it was made lighter
after the time of the Emperor Claudius. (And we may not assume
1 [For Eala read ^aZa.-ED,] > [For danusgue read darivs quam.-TK.]
3 [Por/MWMMf the text of Livy hvsfoentnt. Ta.]
4 [The text of Belli's copy of Livy evidently was corrupt, as he suggests. TB.]
Chap. V]
and Warfare
197
that so small a sum was for the year nor yet that it was for a day; for
that would much exceed what it is right and reasonable to suppose.)
7 Leonardus de Portis again says a that two-thirds of the infantry-
man's yearly wage of thirty-sis gold crowns were paid in money, and
one-third in clothing and other necessary supplies. This view is sup-
ported by numerous passages in Livy, where he records that the allies
of the Romans supplied the soldiers and the army with money, grain,
and clothing, and that conquered enemies were condemned to such
payments.
* In same
treatise.
CHAPTER VI
ON THE SUPPLY OF GRAIN AND OTHER THINGS NEEDFUL FOR THE
ARMY
SYNOPSIS
[88]
1 A ruler should look carefully to the
grain supply.
2 New grain is not to be rationed until the
old is used up.
3 Those who nominate an officer are liable
for the misdeeds of the nominee.
4 An account should be rendered 1 often,
because thefts are thus more easily
detected.
5 When clothing is to be distributed to the
soldiers, both for summer and winter
wear.
6 What the soldier's solatium is.
7 He who has failed to claim his grain in
time of abundance may not ask for it in
a time of scarcity.
8 Soldiers should not extort anything
from the provincials.
9 Provincials are not under obligation to
supply the soldiery with oKve oil, wood,
and mattresses.
10 How a house is to be portioned out when
a soldier is billeted upon it.
11 The discretion of the soldiery is like the
wolfs discretion, and even worse.
12 When a sovereign makes war, he should
not burden foreign peoples.
13 Soldiers should be content with their
wages.
14 The Turks live at very small expense in
the field.
15 That soldier will make poor use of his
arms, who disdains 2 to carry them.
1 6 Rank in the service.
17 Only the Emperor may appoint soldiers
to take the place of those deceased.
1 8 He should have the preference who
has served longest.
19 Free bread.
20 Free grain.
21 What the sextarius is.
22 Bread and meat and other things given
to prominent men by order of a
sovereign.
23 Soldata, ttdfeudum de caneva.
i BEYOND all else, the grain supply concerned the state (and the
Emperor, too, after this office was created^), lest the army should suffer
from hunger or scarcity. For, as Vegetius* says, an army is more often
destroyed by want than by fighting; and starvation is worse than the
sword. 4
*[Rei Miltons
Institute, III.
iii, at the
1 [For redenda read reddenda.TR.]
3 [ceptus, i.e. coeptus. TR.]
[See the text under this number. TR.]
* [For/err^ read /arc. TR.]
198
A Treatise on Military Matters
[Part VII
c Code, X. xxvi.
2 and 3.
*Code,X.
xxvii, sole law.
bcxii. 7.
e(
6.
h <
2 and 8.
1 Ibid. 4-
* Speculum,
curatoribus,
i, words
Itffmquodest
miles.
* Cafe, XIL
xxxv. i and 5.
Hence the laws of the Emperors regarding the deposits of grain in
the state granaries, 3 " among which is an order that the fresh grain 2
supply be left untouched until the old has been disposed of; or, if the
latter has spoiled, that enough of the new [88'] be mixed in to disguise
the defect.*
Hence, too, the supervision of the granaries, to the intent that they
be kept in good repair, 1 and that the grain suffer no injury from leaks.
It was forbidden also that any one should lay hand to the grain with the
purpose of removing it, under penalty of exile and with confiscation of
the goods of the lawbreaker.
Furthermore, in the collection of foodstuffs, it was ordered that
for no reason whatsoever was any one to be excused.* Likewise, that no
one be exempted in the matter of cooking and transporting soldiers'
biscuit.
In charge of the state granaries were overseers and receivers,
whose business it was to store at once in these granaries what was
supplied/ And the receiver had no right to allow the grain of private
individuals to be stored therein. 6
These officers were chosen by the court; and those who nominated 3
them were liable for their misdeeds, 11 of course, after action had been
brought against the officers in their own person. Further, the receivers 4
were obliged to render an account of their transactions each year; and
the reason assigned is that a recent theft is more easily detected and
rectified than one of long standing. 1 To-day all this business falls to the
food administrator, who, as I have already said in another place, is
called the commissary general; but how diligently he attends to it we
often have had occasion to notice.
As I have stated, clothing also was provided for the soldiers by the 5
state; and, in the matter of supplying this, 2 the provincials had fixed
periods of delivery (i.e. of contributions of clothing for this purpose),
namely, from the month bf September to the month of April. But
the soldiers themselves received garments at once in September for the
winter, and in April for the summer; compare Code, XII. xxxix. I, a law
cited by Durandus 1 in support of this, though it is not so stated there
in the text, but in a gloss.
As has also already been noted, money, too, was given with the 6
above, which the soldiers sometimes received under the name of sola-
tium; so Code, XIL xxxvii. 16, I. This was either what to-day they
call 'present' and 'relief, or something similar, as we gather from the
above law. But usually money was given under the name of pay. k
When not in active service, however, I think that the soldiers were
supported for the most part by payment in grain, as is indicated by
Code, XIL xxxvii. 3, 4, and 6. And, in the law last mentioned^ it is 7
1 [Foifectaque read tectague. Taj 2 [For eorum read earum. TR.]
Chap. VI] and Warfare 1 9 9
ruled that a soldier who fails at the proper and appointed time to claim
the allotment of grain owing to him (perhaps because it is rather low
in price, and he can readily support himself from another source, and
he is shrewdly planning to put off his claim to a time of scarcity), such
a man forfeits his right altogether, and is disqualified for subsequently
claiming his share, This is stated also in Code, XII. xxxvii. 7, where a
gloss notes the case of [89] Albertus Calvus, who supplied grain to the
rustics, and refused to accept it in payment when it was cheap. This
law is applied also by Baldus* to collectors, who are paid in grain; he
adds, however, that the above penalty of loss of claim will not hold out- ^ * 9 ' qu *
side the case in the law referred to, but that a man will merely have
his claim settled on the basis of the price-scale during the former
abundance, when settlement was due.
8 Soldiers should be content with these things received from the
9 state, and ought not to extort anything from the provincials. 13 Hence b cfc,xiL
they will not demand fire-wood, or oil, or even a mattress in a word. x f?";L
i jjri - r i HTT i c Code,\ll.
anything needed for tne maintenance of man or beast. Happy the xii, sole law.
times, and worthy the sovereigns to secure 1 world control, when it was d Cok, XIL
not allowed to demand so much as a bath from the host when, in xl " 5>
fact, those who even supplied such things voluntarily were liable to
punishment I suppose because of corruption of the discipline. 6 e cw*, xiLxl.
10 What of the fact that (with a view to avoiding any clash and 5 Md 6t
quarrel between the soldiers and the owners) residences were all but
marked off in sections by the laws ? which directed that the owner
should divide his house into three parts, and that he himself should take
the first choice, the soldier the second, and the owner again the third;
so that the soldier would not find his third the worst, nor yet the best.
On the other hand, if a person of note was to be entertained, the house 3
was divided on even terms.
How different the present practice ! Even a soldier of the rank and
file will banish a host of the highest standing to a corner of the house
scarce fit 3 for a servant, and the lady of the house he will drive from her
chamber.
On Code XIL xnviL 3, Bartolus and others make the com-
ment that soldiers of the court may not require that the host serve
meals (this they perhaps understood as referring, not to the provisions,
but to the serving). But to-day, would that even a fourth part of the
year there were excuse from the business of preparing and providing!
And would that the soldiers were content with modest entertainment,
and with what they provide for themselves when they pay the bills, or
with even a little more than that!
They call this 'living at discretion', when they eat free meals the
1 [For imperarent read impetrarettt.^.] * [For downs read domus . ED.]
3 [For condecens read condeuniem, TIL]
200 A Treatise on Military Matters [Part VII
discretion of the wolf and lion, or, better still, of the Devil ! For animals 1 1
eat a sufficiency, but these soldiers gorge and guzzle, and lick the plate,
and finally even extort money. Would that sovereigns, generals, and
others in control, at least had reverence for God, if they regard not
man; for in that case they would not tolerate this sort of thing. Would
that the majority of officers and leaders did not follow the same practice 1
themselves ! Would that they did not set the fashion for the others !
Would that kings would at least burden only their own provincials ! 12
With regard to 2 foreigners, who owe allegiance to other sovereigns
and are bound to them by no law, they had better consider with what
right and justice and with what conscience they impose these burdens.
Their advisers, too, had better have a care; so also the confessors and
preachers, who always travel with them, [89'] and who, though they
ought to be 'fishers of men', are fishing for the bishopric and other
honours. I would that these words of mine might fall into their hands ;
at any rate they would blush for shame, if they do not reform.
John the Baptist directed the Roman soldiers to be content with
* [St. Luke, iii. their wages, a as I have noted in another place. And this is worth repeat- 1 3
I4 -l ing: that they should do violence to no man and oppress no man.
Thus those soldiers, who knew not God, were yet anxious regarding
their salvation; whereas these warnings are ignored by those who claim
to be Christians. With good reason, therefore, such warriors are taken
*OnCoae~x.ll. to task by Lucas de Penna. b If, says he, they chance to go upon an
xxxm ' expedition, they burden the pack-animals with wine, and not with
iron; with cheeses, and not with spears; with sacks, and not with
swords ; so that one would fancy that they were setting out to a banquet,
c /Wdf. and not to war. This he elaborates at length.
As if the Turks did not live in the field on almost nothing! As if 14
a longer baggage train does not follow one of our armies often thousand
men than follows them when they make expeditions with thirty
thousand! I have very often observed, when our armies were on the
march, not a few men and not the rank and file, either throwing
off their breastplates and helmets upon a pack animal, and passing
their lances (which they call pikes) to a servant (who becomes truly an
'armour-bearer'), while they themselves enjoyed the company of a
mistress, or at any rate marched more comfortably, so as to become less 15
fatigued. Yet Quintilian declares that no man can make good use of
arms who has not learned to carry them.
How much better the training of the soldiers of ancient times!
In the initial period of their service, a weight of sixty pounds was
added 3 to their arms; and, thus equipped, they were obliged to march
at the regulation pace, whereby they normally covered twenty miles
1 [For non tadem read eadem.-^ TR.]
* [Reading Ad for At. Probably the sentence structure is imperfect TR.]
3 [See, however, the text of Vegetius, I. arix. TR.]
Chap. VI]
and Warfare
201
a day. So^we read in Vegetius,* who adds also that on hard campaigns
the individual soldier was required to carry on his shoulders his own
arms and supply of food.
This H also indicated by a passage in Cicero's Tusculan Disputa-
tions:* 'First 5 , says he, 'you see whence our armies derive their name;
and then you note what the labour is how severe the toil of the march,
to carry food for more than a half-month, to carry whatever is needed
for use, to carry the intrenchment stake. For our soldiers no more
count shield, sword, and helmet a burden than 1 they do their shoulders,
arms, and hands. For they call military arms the soldiers' limbs; and',
says he, 'they carry them so conveniently that, if emergency arises,
throwing aside their other loads, they can fight with arms all ready to
hand, just as if they were limbs'. Thus Cicero.
Soldiers of to-day make excuse, and dispute the charge of extortion
on the ground that the periods of living at discretion are reckoned against
their pay. But how far this justifies them from the point of view of
the provincials, 2 it is for them to determine. And sovereigns need to
explain on what grounds they justify and utilize this procedure; but
perhaps it is not so much their fault as that of their agents, who have
mores regard for a king's profit than for his honour and salvation.
16 Finally, there are [90] grades of advancement in the service. For
on the basis of courage and valour men are promoted from their posts
17 to higher divisions; but only the Emperor may advance them. So
Code, XII. xxxv. 14, at the end, and Code, I. xxxi. 5; and more clearly
in laws I and 2 of the same title: 'No one shall be advanced on any
1 8 other basis 4 than that of actual service'; and 'those whom the order of
the service and more numerous campaigns and more abundant labours
have caused to advance'. To-day these laws might be stricken from
the books.
However, the chief of records on his own motion may reduce the
rank of a soldier who deserves it. c But to-day the commander of the
army promotes and removes at his discretion, except in the case of a
few higher positions, and he even makes appointments to replace men
deceased, which under the ancient law could be done only by the
Emperor, d
r$ And not to go farther afield regarding this matter of rewards, among
the soldiers' perquisites might be reckoned 'free bread', of which
mention is made in Code, V. xii. 31, 5, and in the Authenticum (and
20 Novels], Ixxxviii. Under another name this was spoken of as 'free grain' ; e
and it was referred to also by the general term 'service claim V
Alciati* thinks these grants were thus designated 5 because they
were originally gifts of food to the populace at the hands of the
1 [For numerantque read numerant guam. TR.]
a [For PrwittridibHs read Provinaalibus. ED.]
[The reading of Cody, I. xxxi. i is doubtful. TR.]
Dd
31 [For magfsque read magis qiiam. TR.]
5 [ie. as {panes, amonae) diHes. TR.J
Sei MiU-
iat is Instituta,
I. ix and xx
[xix.]
b P. 37-]
Cfe,I.
xxxi. 3.
xxxv. 17 and
18.
"See the enact-
ment of
Code, VI. x
20, at the
Codf, VIII.
XIX. i. 5 2,2J
flfc. XXXII.
v \Auihmt.
(and Novels)
CXXXVI. ii,
and often else-
where.
1569.64
202
A Treatise on Military Matters
[Part VII
[Chap, i
c [Satires, I. i.
74-]
xiv.
Emperors, being later changed to a largess of definite amount; and on
this ground he criticizes Aelius 1 Donatus, who, in his Life of Virgil,
says that the latter argued that Augustus was the son of a baker,
because he very often sent him loaves in return for his poems 2
assuming that, if bread was given, it was 'free bread'. But I think that
what Donatus said may be literally true, namely, that real wheaten
loaves were given.
This practice is indicated by Flavius Vopiscus in his Life of
Aurdian? For he says that while the latter was at Rome, sixteen fine
military loaves were given him daily by order of the Emperor Valerian,
together with forty other ration loaves (which I think were bread of
inferior grade), and forty pints of wine for his table.
And I would not have you suppose that those pints were like the 21
sextarius in general use to-day.* For, as Alciati points out, 13 that pint
amounted to sixteen ounces, which fits with the word of Horace in
regard to a simple and frugal way of living: 4
Bread map be bought, greens, a pint of wine,
Those forty pints, then, will amount to approximately twenty-four
quarts.
In addition, the Emperor ordered to be given to him half a young ^^
pig, two chickens, [90'] thirty pounds of pork, eighty of beef, a pint of
oil, another of second grade oil, and a like amount of sauce and salt.
Like gifts he writes 3 were apportioned to Claudius by order of this
same Valerian on his elevation to the throne.
So you see that real bread was given. And yet I do not reject the
statement of Alciati that 'free bread' was commuted to a money pay-
ment 5 for this understanding is favoured 6 by the name itself, 7 i.e. by the
fact that it is designated civilis. (You will note, further, how easy it was
to satisfy prominent men who climbed even to the throne of empire.) 8
In fact, I think that 9 e free bread 3 differs little from the pensions
which kings to-day grant to soldiers and others who have served them
well. Such was the pension granted me by Philip, King of Spain, the
most munificent of living sovereigns; for he apportioned me four
hundred crowns yearly for 10 life. These largesses are what the feudal
laws c&feudum soliatae orfeudum de caneva. 23
But since in many enactments there is mention of c free bread',
'free grain', and 'the grain ticket', as in the laws cited just above and
1 [For Ebtto read Aeliwn. ED.]
a [This doubtful pleasantry is not found in the Life of Virgil, once ascribed to Donatus, but now
attributed to Suetonius. But in another place (Augustus, iv), the latter writer credits Antonius with
originating gossip to tie effect that the great-grandfather of Augustus was a baker. TR.]
[The reference is to a measure of several gallons' capacity.- TR.]
Tor vidus read vidu.
For amgrue read wgri/.~
For quo ad read quoad.-J&D J
This life is ascribed to Trebellius Pollio. TR.]
7 [For ipsas read ipsa. TR.]
' [For Otis read fZ& TR].
Chap. VI]
and Warfare
203
in Digest^ XXXI. xlix, i and Ixxxvii, near the beginning, I wish 1 to
say a word about these.
I premise that they commonly- were designated by the name
'service ration' (militia}. They consisted 2 in certain annual payments
to persons so entitled, made normally either by the state or by some
private person. Of this sort, or not very different, are what are
designated 'gate privileges' in the imposts of Saint George; or better,
they are like what at Rome they call 'riparian rental', and numerous
other sources of income; for the above-mentioned 'gate privileges'
are in many points different from both.
I believe, moreover, that those grain tickets were restricted, one
to a person. And it is clear that all 'service rations' were not of the
same grade and kind. For some such claims were transferable, and could
be passed on to an heir, others could not.* Some, though terminating
at death, still bound the person who had profited thereby to pay a
definite sum to the heir. b
Further, I think that those grain tickets 3 called for a monthly or
yearly payment, regularly 4 apportioned to the tribes perhaps, if not to
all, at any rate to the poorer. I believe, too, that they were negotiable.
For any man enrolled in the tribes could sell his claim to another, pro-
vided that he was not of the same tribe.
Nearly all this seems to me to be established by Digest, XXXL
Ixxxvii, near the beginning. For Titia ordered a grain ticket to be
bought for Seius; and though [91] Seius by gift otherwise secured the
grain ticket, 5 the heir of Titia is obliged to pay to him its value; 6
for if in the person of the same individual the ticket 7 could be dupli-
cated, then it would have needed to be made good, not in value, but
in kind.
But 8 the grain ticket 7 in question was a sort of imaginary posses-
sion. For that it was not a true and actual possession is shown by that
text: ('since such a fideicommissum is more a matter of amount than
of actual possession'). Furthermore, inasmuch as the grain ticket came
into the freedman's hands by gift, if it were an actual possession
neither it nor its value would have been a liability 9 of the heir. For
duplication in the same gift is not allowed. 6 Again, we have the evi-
dence of Digest, XXXL xlix, I, which states that it is the value, and
not the grain ticket itself, which is regarded as having been willed.
From the above passage it is dear also that the privilege itself
was terminated by death. For if that were not the case, doubtless the
legatee would have passed it on to his heir; though the jurisconsult there
For liber read Bet. TR.] z [For amstituebant read constabant or ewKw^itf. TR.]
'For iUafnonenlanas read iUamfrwamtariam.-^] * [For xtibam read jrifaftr-T*.]
For tessaram read tesseram.TiL.} * [For aestwatiom read aestomttonem.-TlL]
'For tessere read tessera, TfcJ ,
For se read sed. TR.] * [For praestatutt read fracs tanda<-~ TR,]
*SeetheieguIa'
tions in Code,
VIII.xiii.27;
Code, III.
xxviii. 30, s ;
Autkent.LIH.
xxviii, 30, 2.
*Iitst, II. xx,
i6;0fc
XLIV.vii.i7
204 A Treatise on Military Matters [Part VII
states that the legacy is not cancelled by the death of the legatee,
but in the sense that the value is regarded as transmitted.
And from this I 'think that it might be argued that if a testator
directs his heir to buy a position for his friend Gaius resident at Rome
(let us say, a secretarial position at the Papal Court) ; if Gaius dies after
the legacy becomes effective, he transmits the same 1 (i.e. the value and
worth of the office) to his heir j and the value itself will not be cancelled
by death, though this would not be true of the appointment, supposing
it to have actually been bought.
There is a similar case also in Digest, XXXII. i. 35, near the begin-
ning, A patron orders that class privilege (tribus) be bought [by his heir]
for a freedman of his. The heir delayed 2 long to buy, and the freedman
died, 3 making a certain very prominent man his heir. It is stated in
that law that the value of the class privilege is due to this heir. A gloss
there inquires why the thing itself, i.e. the class privilege, will not be
made over to him; and the reply is that this is not required, because a
definite person was specified as the one to receive the privilege. I
think that this is far from the meaning of that law. For if you assume,
with the gloss, that tribus ('tribe') means 'increase of slaves', what 4
hinders the claim of the freedman's heir to the identical thing, rather
than to its value ?
My own view is that this tribus ( e class privilege') was something like
'free bread' or the grain ticket. For those perhaps were distributed to
the poorer tribesmen by the day, or the month, or the year, not being
received by persons outside of the tribes, nor yet by people of greater
wealth. Since, therefore, in view of his station, the very prominent
heir of the freedman was incapacitated to receive that legacy, it might
appear that under this head the freedman had passed on nothing to
him. But in the above law the reverse is ruled, namely, that the value
of the class privilege is due to him, because it is really a legacy. And so
the situation is the same as in Digest, XXXI. xlix, I. ,
These references to the grain ticket (tessera) and [91'] class privi-
lege 5 (tribus) are very differently understood by Accursius and Bartolus
and all the postglossators. Any one who does not like my interpreta-
tion may provide a better, or accept the old.
But to proceed with this subject of grants (militiae), we must
recognize that originally none were negotiable. For they were official,
and did not admit of trafficking, resting solely upon the generosity of
the Emperor. And for this reason they were neither sold nor mort-
u & a ec ^ anc ^ P er haps they were not conveyed to an heir. a
5b. v. '" Later, they began 6 to be sold and passed on to an heir, and even
1 [For am legato read mm legatum.'TiL.] * [For more read mora. TR.]
3 [p<ww ; reading doubtful, A good sense would be given by repents ('suddenly'). TR.]
* [For quod read fiok-Ti.] s p or xribus read tribu. TR.]
6 [For esptrunt read coeperunt. TR.]
Chap. VI]
and Warfare
205
mortgaged/ but with a distinction: (i) the creditor had advanced the
money for this 1 specific purpose, namely that the grant be purchased,
and then^he had the preference over all creditors, even the earlier, 2 as
is shown in Code, VIII. xiii. 27, near the middle, and Code, VIII. xvii.
7; or (2) a merely general contract had been made, and then the
creditor in his due order laid claim 3 to the debtor's grant (i.e. by action
based on the contract), or he collected from the heir as much of it as
could be realized, or, again, in case the grant lapsed at death, the
amount ordinarily paid to the Emperor for the same. b
As against a creditor who held a merely general pledge, a wife had
the prior claim or even her sons suing for the dower. c And it is even
declared 4 that it makes no matter that the money was loaned for the
purchase of a grant, unless this fact was expressly set down in writing;
so that mere testimony on this point is of no value.
Moreover, in the Authenticum, LIII. v, we find all this enacted at
greater length. For the Emperor allowed that both in particular and
in general these grants be made 5 subject to the claim not only of the
man who 6 loaned money to procure them, but also of the wife and
sons, and of other creditors.
And, in my judgement, we might argue from this passage that in
the case of a purchased fief (bought, however, from the Emperor him-
self), payment could be made to the wife on the dower account, and
also to the creditors, at least to such as had advanced money for the
purchase. But note that this law or enactment is not quoted by any
one in support of such an application.
Another thing, too, can be seen in that passage, namely the
breadth of the generosity of the Emperor, who desired what he gave to
be a stable and lasting possession. But in these days, if tings show any
liberality to those who have served them well, and grant any pensions
which without doubt are the same as grants (militiae) they add the
proviso : 'So long as he comports himself well, and it is our pleasure' ;
implying that past service will count for nothing, unless the yoke is
endured for all time. , , Others make a grant 'for life', even when
rewarding a man of sixty, who has served all his days. And would that
they paid what they promise!
The person selling a grant was under no other obligation to the
buyer [92] than that he relinquish to him extraordinary action against
the person making the annual payment. 6
Again, if a person under obligation to buy a grant for another is
charged something beyond its cost (e.g. according to the custom of
the present day, some small amount as an honorarium for the secre-
taries)/ this expense, too, he must bear.
1 [For haec read hoe. TR.] a [For detsrMbus probably read anlerioribus. TIL]
3 [For vendicabat read vindicdb^^ TR J 4 [The text at this point is inexact.- Tfc.1
* [For possit read possint. TR.] 6 [For quf read, ji.TR J
xi. 27.
C<wfe f VlIL
xiii. 27 ; Code,
III. xxviii. 30,
2.
c In Authenlica
following Code,
VIII. xiii. 27 ;
namely 4
Authent. LIII.
v.andXCVH.
iv.
tpie. XXXIL
cii, 2 and 3.
206
A Treatise on Military Matters
[Part VII
a On Dig.
XXXVII. vi.
*> IS-
c Ibid., col. 3.
16.
* Cafe, XII.
IILxxviii.
Bartolus* discusses at length whether a grant which a father buys
for his son is to be counted as the latter's legal possession or shared also
by his brothers. And it might be sufficient to give the reference to
Bartolus; but, touching on his statement, note the distinction: (l) The
grant is one that cannot be sold or transmitted to an heir (such, he
says, are prebends and church benefices), and then, whatever the father
may have expended therefor, nothing will be credited to the son (how-
ever, I have at times seen it otherwise ordered in regard to the wills of
nobles but improperly); (2) it is a grant that may be sold, but not
transmitted (such, I think, are those riparian rentals which I have
mentioned, and also the offices in the Roman court; such also I hear
to be senatorial positions everywhere in France), and then the grant
will be credited and shared.
We must note, however, that the full cost price is not credited,
but the market price at the time of the father's death; so Bartolus. b
And this must be understood with the further reservation that, from
the market price at the time of the father's death, the expense entailed
by the position itself is deducted. For let us suppose that the father of
a jurisconsult bought for him a senatorial position at the court of
Paris, the market value of which at the time of the father's death was
two thousand pieces. This whole sum will not be credited or shared,
but deduction will be made for the maintenance, attendance, and
expense entailed by the office. For it would not be fitting that it be
sold absolutely, and the son reduced to private station. This I gather
from the words of Bartolus, who says that as much is to be shared as
was realized from the sale of the position, deducting the maintenance of
the same words which, if otherwise understood, would have no appli-
cation; for if a position is sold, the expenses of the maintenance would
cease. The same thing is implied by the text of Digest, XXXVII. vi. I,
16; and such was the understanding of the gloss on Code, VI. xx. 20,
I and III. xxviii. 30, 2. (And if a position can both be sold and trans-
mitted, all the more will it be credited and shared.)
Again, if it were a civil, or, as they say, a secular position which
it was not customary to sell (as is true almost everywhere of senatorial 1
positions and all magistracies generally, even though they be granted for
life), supposing 2 it to have been secured from the Emperor through the
agency of one of his staff, who 3 generally receive no small commission
for such services, this expense will by no means be charged against the
son. [92'] d
But, in the case of the silentiarii, the above mentioned rule 4 for
crediting and sharing does not hold, however negotiable the position
may be. e This should have been added to what I have said at an earlier
[For senatorias read sewtoriae. TR.]
[For quod probably qi4 should be read* TR.]
' [Reading esio quod for est quod. TR.]
4 [i.e. of Bartolus. TR.]
Chap. VI] and Warfare 207
point regarding the privileges of soldiers, under the first head, namely
that what a father presents 1 to his son for military purposes becomes a
part of the latter's military acquisitions. For although that holds, in
the present case the position will in addition become the son's legal
possession; for otherwise there would be no special favour for the
silentiarii) as provided in the laws last cited. 2
CHAPTER VII
THINGS FORBIDDEN A SOLDIER BY LAW
SYNOPSIS
1 A heretic cannot be named as heir by a < II One who loans money to an official is
soldier. said to bribe him.
2 A soldier may not leave a courtesan as j 12 More or less mates no difference in kind.
his heir. i *3 Who are called bankers.
3 A slave cannot be named as heir by a ' H Wk* collectors (coaetora) are.
soldier, unless he is emancipated. i T 5 A soldier may buy a city property in a
4 A father in the service may not make a j P ro ce 5 and the reason wh ? h * ma ?
bastard son his heir. I not IJcewise acquire country knd
5 Soldiers may not acquire land in the l6 ^ endl< : ant fna , rs ' . es P eciaU - v of Sal f
province where they are serving. Francls > are kble for mes on ^
6 What is not allowed in person is allowed
estates actually possessed by them.
17 Soldiers may not take their wives with
... 1 */ uuJ.uj.t-j.0 JLU.OV U.UL. LOA.V i
through the agency of another. them into a province.
7 Whether officials may acquire immov- , lg Soldiers may not lease land.
ables; and which officials. . j 19 A soldier may not make gifts to a con-
8 That is counted 'permanent* which is j cubine.
granted subject to the good pleasure of j 20 Soldiers may not let their animals 3 loose
in the pastures or meadows of other
a sovereign.
9 Unfairness of price indicates that dis-
honesty has entered into a contract.
Dishonesty from unfairness of price;
people,
21 A soldier may not prefer charges.
22 A soldier may not be a deputy.
cf. above. j 23 A soldier may not be a guardian.
10 Sometimes there is breach of contract, j 24. A soldier may not be an informer.
[93] SUCH was the interest of the Emperor in the soldiers that, lite
a good head of a famity, in many respects he granted them indulgence,
and in many he put them under a prohibition. For, to begin with the
matter of wills, a soldier may not leave as his heir any one he pleases,
but only such persons as the law does not expressly forbid,
i The law puts the ban upon a heretic ; a litewise upon a woman who * cfe, I. v. 22.
3 is the object of disgraceful suspicion. 1 * And a soldier may not name his
4 own slave as his heir without also emancipating him but for a
i [For de wad <fcrf.-lR.] * [For
3 [For ammalis read amma&if- IfeJ
208
A Treatise on Military Matters
[Part VII
* On Dig.
XXVIII. iii. 7.
c Consitium 59
(Requisite),
no. 5.
* Code, XH. m
xxxv. 15 ; Dzg.
XLIX.xvi.i3,
at the begin-
ning -,Dig.
XVIII. 1.46
and 62.
XLIX. xiv.
46. .;%
L. viii. 2, i.
*De Nobilitaie
el lure Primo-
geniturae,
chap xxviii,
no. 7 to end,
1 Cafe VI.
li, 9, cols, i
and 2, especi-
ally words
qu'idam swd
actus.
"Itfg.XLIX.
xvi. 13.
xvi. 9 ; %.
XVIII. i. 62.
JflfcXLDL
Z)zg. XII. i. 33
and 34;
Dig, XII. L#.
i According to
gloss on the
Constitutions
of Ckment I.
different reason. 8 The same is true of a bastard son, as Baldus has
pointed out, b offering an explanation that to-day is very unusual,
namely that (as he says) a higher standard of morality is demanded of
soldiers than of other men. This explanation he applies also to Digest,
XXIX. i. 41, i; and such was the decision rendered by Calcaneus c
when consulted in regard to an actual case, which is particularly worthy
of attention, especially in view of the conclusion above reached that
these regulations still apply to soldiers of our times.
Soldiers are also forbidden to acquire land in the province in 5
which they are serving. d And they cannot do it by proxy either, 6
though this seems at variance with the statement elsewhere made that 6
it is permissible to do by proxy what one cannot do in person. For a
noble may act through slaves to secure even sordid gains; just as an
honourable matron may without criticism keep a tavern by employing
a servant of low standing. This difficulty is considered at length by
Tiraqueau,* who solves in two ways: (i) on the ground that a person is
not said really to do what he accomplishes through another; and (2)
he says that the question is whether the law regards the activity of the
person.
My notion is that there is a better explanation on the basis of the
distinction laid down by Baldus in another connexion, 5 namely that in
regard to acts which are viewed with respect to their end and issue, and
not with reference to the actor, it makes no difference whether a thing
is done at first hand, or under one's direction by proxy; but in regard
to those actions which are introduced as a matter of form, and in
which a person thus functions, then a man who acts through the
agency of another is not said to do the thing in question. Now in the
above limitation upon a soldier's freedom it is the result that is held in
view, namely that the men shall not desert the service, allured by the
attractiveness of rural life. 11 (But a soldier may recover his own estates
or even those of his father, [93'] if they chance to have escheated to the
fiscus). 1
And such purchasing is forbidden as well to prefects, governors,
and also even to a commanding general and other officers of the
Emperors; 3 so Code, I. liii. I, where they are forbidden also to accept
gifts. This subject presents no small difficulty; hence we must recog-
nize a distinction:
(i) A man is an official with jurisdiction, and then he is forbidden 7
to engage in trade,* unless:
(a) he is holding office in his own country; or
(fy he is a permanent official (provided, of course, that he buys
honestly. Note, too, that he also is called a 'permanent' official who is 8
appointed subject to the good pleasure of the sovereign); 1 or
(c) he buys things essential to living; again,
Chap. VII]
and Warfare
209
(d) he deals with a non-subject. This, as Cino thinks, is limited by
the further restriction that he must not buy to make a profit; and
Baldus a quotes and follows.
(2) He is an official without jurisdiction, and enters into con-
tracts touching things relating to his administration; and then he is
out of order, even though he conducts the transactions openly. So
Baldus* judged, in view (as he says) of the man's representative position
which is to say that a certain respectful attitude is demanded; and
this view is supported by Digest, XVIII. i. 46 and 62, Digest, XII. i. 33
and 34, and Code, I. liii. i, which make no distinction whether action
is taken openly or secretly. (However, understand all this of an officer
on a temporary appointment.) And although Bartolus* rules otherwise,
as does Fulgosius, d the view above stated is the sounder, and the Doctors
more generally accept it; see Jason on Digest, XII. i. 33," a law which
affords strong support in that it forbids engaging in trade, which, of
course, is not usually a secret matter.
But if the official has business dealings outside matters involved in
his administration, whatever he does is valid, 1 of course, if the transaction
is conducted in good faith.*
9 Of one thing, moreover, be assured, namely that if the price is not
found to be fair, good faith is not to be taken for granted even if it
be less than a half so Baldus comments on Code IV. ii. 16. All of
which applies to the officers of sovereigns and their staffs. 11
In addition to the references above given, Baldus considers this
subject in his Consilia* There he takes the strange ground that an
official is not held to a contract prejudicial to himself, which I should
scarce dare to say, when on the bench. For I think that the above laws
were enacted to the officials' discredit, being designed to check their
plundering and roguery (hence a penalty is attached, even of fourfold
10 payment). 5 [94] Accordingly these laws should 2 not be distorted to
favour the officials; for it would be more reasonable that there be
breach of contract than that natural logic be outraged.
Regarding this, see Code, I. xiv. 6 a subject on which Felinus*
brings many considerations to bear, in his usual fashion. And that it
was in favour of the provincials that these laws were introduced is
shown by Code 7 1. liii. I, where it is stated that it is within the right of
a donor to validate a gift after finishing his term of office.
In regard to loans, however, I admit that the regulations were
made to the discredit of both parties. Hence both are punished,
11 according to Code, IV. ii. 16, where it is stated that he who makes a
loan to an official is said to bribe him; see Baldus* comments there.
And the same statement is made in regard to a banker who has advanced
[For Principe read proesifa.
[For debet read d&ent* TR,]
a Consilium
(Sfatim
* On Code, IV
ii. 16.
c On Dig.
XLIX,xiv.46
'.
*OnDig.
XVIII. 1.46,
and XII. i. 33,
word
mementote.
* According to
Bartolus on
Dig. XLDL
xiv. 46, 2. 1
* Ibid.
i8,with
comment.
'HI. 335
(Proemtto
Buir.).
liii, i.
k On Decretals
I. iii. 26, el. 2,
and II. i. 7.
1569.64
210
A Treatise on Military Matters
[Part VII
ZtyXIL
i-34-
b Code, TV. 2.
16.
Parerga, I.
XXV.
xvi. 13.
xvi. 13 and 9.
money to a man in support of his canvass for office, both parties being
severely penalized.
But as for the fact that Code, IV. ii. 16 and Digest, XII. i. 34 seem
to be in conflict (in that one forbids obtaining money at interest and
the other allows it), a gloss explains that one relates to a permanent
official, who 1 may borrow/ and the other to a temporary official, who
may not. b
Alciati, c however, has another explanation, namely that Digest,
XII. i. 34, in point of fact is speaking of a higher magistrate named by
the Emperor, while the other law has to do with lower officials, such
as town officers. This distinction is not supported by the law, nor has
it any analogy; moreover, greater or less makes no difference in kind. 12
Further, it is in conflict with Code, IV. ii. 3 ; and Digest, XLIX. xiv.
46, 2 treats alike the governor himself, the procurator of the fiscus,
and any others you will.
Therefore, we should not reject the gloss and the common view,
although there is no little difficulty with Code, IV. ii. 3 ('during the
period of their office') words which imply that the provincial officer
is a temporary official; moreover, that the office of proconsul, pro-
praetor, and other governors of provinces was not permanent, but
temporary and annual, is indicated by many letters of Cicero, in which,
while he was governor of Cilicia, he earnestly begs 2 his friends not to
allow his year of office to be extended. Nevertheless, there is strong
rebuttal in the explanation given in Digest, XII, i. 34 ('because they
are permanent') ; and in regard to governors this is stated also in the
above mentioned Report to Tbeodosius.
(As for the function of the bankers mentioned in Code, IV. ii. 16, 13
Alciati d comments, holding that they are otherwise known as 'collectors 5 14
(coactores). These are persons who undertake on commission to collect
the rather bad debts of business men.)
It also is allowed a soldier to buy a city property; for here the 15
question of being lured from the service does not enter. 6 Moreover, if
he buys property in the country and is mustered out before it is seized
for the fiscus, his act is condoned. 1
But may the governor himself buy a residence ? The general tenor
of Code, I. liii. I and Digest, XLIX. xiv. 46, 2 implies that he may not.
Further, in the laws cited, there is no distinction between city and
country estates, [94'] and the logic of the above assumption applies
equally to both ; unless you should declare for the opposite view, on the
ground that the man is a permanent official, in accordance with what
I have said above in this same chapter.
Again, a governor is forbidden to construct a ship of burden, as is
stated in the oft-cited Digest, XLIX. xiv. 46, 2. The same rule is laid
1 [For guia read i#. TR.]
1 [For regal read rogat. Tk.]
Chap. VII]
and Warjare
211
down for a senator in Digest, L. v. 3, near the end, where it is stated
also that a senator has no exemption as compensation for providing a
ship, because the law forbids him to own one.
16 (This has a bearing upon those orders of mendicant friars, especi-
ally of Saint Francis, who own immovables, namely that they are not
exempt in the matter of taxes, since they hold those possessions in
defiance of rule and law. So Constitutions of Clement, V. xi. I; and this
was stated earlier by others also.)
17 Soldiers are forbidden, too, to take a wife with them into the
province where 1 they are serving, unless they secure permission from
the Emperor. Both these points are proved by Code, XII. xxxv. 10 and
Digest, XXIII. iv. 26, 3. But this does not apply to the general him-
self, nor to the governor of a province; so Digest, I. xvi. 4, 2, where
a decree of the senate is cited dealing with this point not to the effect
that wives may not accompany husbands into a province, but that
the husbands are held responsible for wrongs committed by their wives.
Moreover as regards forbidding their going, there was once a very
vigorous fight in the senate, but to no purpose; for the better faction
opposed and fought it, as related by Tacitus.*
But yet I do not think that this rule was rigorously enforced in the
case of common soldiers. For that wives were taken into the province is
indicated by many laws, especially Code, II. li. I and 2, and XII. xxxv, 10.
And just as a soldier is forbidden to take with him a wife, so also
he is forbidden to acquire and marry one in the province. b But he may
do so, if an engagement has previously been entered into. And as for
the engagement itself, this he may contract while in the province.
If he does marry a wife contrary to law, after the completion of
his service the marriage is validated. 4
Again, in connexion with my remark above that the purchase of
18 land is forbidden to soldiers, observe that the same is true if they desire
to lease land. So Code, IV. Ixv. 31, where a twofold reason is assigned,
namely that they be not lured from the liking for war, and that they
may not become burdensome to the neighbours and the provincials
a reason assigned also in law 35 of the same title, where the expression
is noteworthy ('and making harsh use of their arms, not upon the
enemy, but upon the neighbours and unfortunate tenant farmers,
whom it is their duty to protect 5 ). And there they are forbidden also
to become surety for others who lease land. (See, too, the like ruling
in Code, XIL xxxv. 15 and 16.)
19 Furthermore, a soldier is forbidden to make gifts to a mistress or
courtesan. 6
Again, soldiers are forbidden to graze their horses in the fields
belonging to the Emperor or to the provincials/ However, the town
1 [For inqaa read in qua. ED.]
20
* Annals, III
[xxxiii, ff .]
* Dig. XXIII.
il 65 and 38.
'Seekws cited.
2 and 3.
212
A Treatise on Military Matters
[Part VII
iv. 7.
fc. Ill.iii.
3,1 1.
h Cafe, II xii.
chap. i.
xxxiv. 4.
"D4.XUX.
xiv,i8,6.
*St,Luke,w.
M;*
Matthew, xxii.
[2i?];Z)#rtfw,
II. xxiii. i, 5.
12.]
[Virgil,
[Cf. Juvenal,
Satins, VII.
802,]
officials must see to it that provision is made for the pasturage [95] of
the animals used by the soldiers, but without loss to the provincials.*
From this it appears that such expense cannot be levied upon indivi-
duals a rule little observed.
Finally, soldiers are forbidden to bring charges, unless they are 21
prosecuting for an injury to themselves or to their friends b except in
case of a charge of treason.
Likewise they are forbidden to act as deputies even for parents or 22
wife. d (However, a soldier may attend to cases for himself 6 ; so also for
his division and company/ and when the status of some one connected
with him is at stake*. But if this exception is not claimed before action
is set on foot, it cannot be claimed thereafter/)
According to Bartolus, the reason for the above prohibition is two-
fold, namely that the soldier be not called away from his tasks, and that
he be not, for the opposing party, a more difficult and awe-inspiring
antagonist than the principal himself could be; also 1 that soldiers be not
busied with common tasks especially men who are of higher rank.
For such business is very demeaning; so Code> X. xxxii. 34 ('stooping
to a very degrading cheapening'). 1
Soldiers are also warned against incestuous marriages, 1 the penalty
attached being loss of belt and property, unless there be some other legi-
timate offspring for whom these may be reserved. In fact, if the culprit
is of low rank, he is punished with the club and with exile, that he
may learn to live decently, and to keep himself within nature's bounds.*
And in this case ignorance of the law is no excuse.
Likewise, a soldier is forbidden to become a guardian, even though 23
it is so directed by a will. 1 But there is exception in the case of a ward
who is the son of a soldier, as I have noted above among the privileges.
They are forbidden, also, to report derelictions to the fiscus. For 24
this is the business of a low 2 and base person, and it is incompatible
with the dignity of the service. 11
In fine, by divine warning soldiers also are forbidden to injure
the provincials, or to accuse them falsely.* For the business of war
itself is sanctioned; but to engage in it for loot is not allowable. Yet
in these days who is there who does not follow the colours with the idea
of plundering, and of accumulating by fair means and foul ? So with
justice we might declare: There is none that doeth good, no, not
one'. And if there really are any, it could truly be said:
or again:
Scattered the7 appear, on a vast flood floating ;P
And rarer than a crow milk-white.^
1 [For ulilitatem read vilitotem. TR.]
Chap. VIII]
and Warfare
213
CHAPTER VIII
WHEN SOLDIERS ARE AMENABLE TO THE COMMON LAW ALONG WITH
OTHER PEOPLE
SYNOPSIS
[951
1 An oath makes a soldier a sort of civilian,
2 In renouncing zjideicommissum a soldier
forfeits an advantage.
3 A soldier in business falls under the
jurisdiction of the judges of merchants,
4 A soldier needs to be shown no respect
when it becomes necessary to oppose
him with a weapon, just as if a robber.
5 A soldier recovers property held in
common with another, only in propor-
tion to his share. Hence:
6 A partner does not have or enjoy privi-
lege because of having a privileged
partner.
7 A soldier recovers what he has given for
a discreditable purpose.
8 Other things being equal, the state of a
person in possession is more advan-
tageous.
9 A soldier who bears false witness falls
to a court other than his own.
10 A soldier may not make an entry in his
own favour in the will of a comrade-in-
arms.
1 1 A soldier who is a heretic lacks testamen-
tary capacity.
12 A soldier who prosecutes appears in the
court of the defendant.
Aside from the cases that are specified by law to their advantage
and profit, it might be said in a word that soldiers must use the
common law like other folks; yet I choose to mention a few regula-
tions that include them in the common lot.
1 IN the first place, then, a minor who is a soldier is amenable to the
common law, if he consents under oath to the alienation of his property.
So Code, II. xxvii. I ; and while this is a law of the pagan Alexander,
the principle is much more emphasized in the rulings of Christian
2 sovereigns/ Likewise a soldier is amenable to the common law, if by an
agreement with his brother he renounces a fideicommissum from the
father.*
So, too, in the case of Code, II. Hi. 14, and II. xlix. I (with II.
3 xlvii. i), and II. 1. 5, and III. xiii. 7, where, if a soldier is engaged in
business, he is put under the jurisdiction of the judge of that kind of
business. And ecclesiastical judges would do well if they allowed this
procedure in the case of their clerical subordinates engaged in trading.
A like decision regarding the application of the common law is
found in Code, III. xxi. 2. So also in the case of Code, III. rriv. I,
where it is ruled that, in the matter of crimes, privilege of court (from
the rank of 'highly distinguished 3 down) does not avail to prevent trial
for an offence in the district where it was committed. (This bears on
a subject of which I spoke incidentally above in the discussion of
privileges.)
* In Autheniica
following Code
II. xxvi. i.
Part VII,
chap, iii, no.
39-
xx vn. i.
214 A Treatise on Military Matters [Part VII
So, again, in the case of Code, III. xxvii. I; [96] for at night it is 4
permissible to oppose a soldier who is breaking in, just as you would
resist any other person, since no respect needs to be shown a soldier
So Code, IIL who has to be opposed with a weapon, as if he were a robber. a
So, once more, in the case of Code, IIL xxxii. 4, where military
service is no protection against a praescriptio [longi temporis], if the period
of the latter is complete at the time service began. 1
So in the case of Code, IIL xxxvii. 2, where a soldier reclaims only 5
his share of a common property that has been disposed of (hence a 6
partner does not enjoy privilege because of having a privileged partner
except when he suffers an unfair division; and the same rule is
found in Code, IV. lii. 4 2 ).
So, again, in Code, IV. vi. 4 [5], where what is given to a soldier for
a definite purpose is recalled, if the purpose is not realized. Likewise in 7
the case of Code, IV. vii. 3, with gloss, where it is indicated that what was
given for a discreditable purpose is recovered by the soldier, because (as
the gloss claims) he was unsuited to military service, so that there was
discreditable action only on the part of the giver; it follows, therefore,
that if there had been such action on both sides, the giver would not
have recovered. This is supported, further, by what is said in a gloss on
CW,? IV. vii. 2.
These laws seem in conflict; but they can be reconciled in a
different way than the gloss and the Doctors propose. For to say, in
the case of Code, IV. vii. 3, that the soldier (as noted) was unsuited for
service is assumption pure and simple, and in fact it is refuted by the
introductory phrase of the law, which refers to him as 'a soldier'.
Therefore, it could be said with better logic that a soldier is reimbursed,
even though he has advanced money for a discreditable purpose, since
the other also has acted discreditably in receiving it; and that this is
due to the favour shown military men which should be added to the
other privileges above listed.
Such was the situation in the law cited. For there was extortion
on the part of the man who accepted a bribe from the soldier, thus
utilizing his position as an occasion for a crime (for, being put in
charge of a levy, he accepted money not to enroll the candidate as a
new recruit, though the latter, as I have said, had already been passed).
The rule then is, according to Code, IV. vii. 2, that, other things being 8
equal, the advantage lies with the party in possession, though it may
be otherwise by reason of favour shown to military men.
(However, against Code, IV. vii. 2 stands Code, V. xvi. 2, which says
that property given to a mistress is restored to a soldier, and the
reason is appended; 'because', says the Emperor Antoninus, *I do not
1 [For cepta read coepta. TR.]
2 This Code reference should be read in connexion -with the text Here. TR.]
Chap. VIII] and Warfare 2 1 5
want my soldiers despoiled by their mistresses in this manner and
through cajoleries 3 . We may reconcile by supposing that in Code, V.
xvi. 2 there was no actual gift, but that an appearance of this was
developed through buying the property ostensibly in the name of the
concubine.
And yet it cannot be denied that this appearance was developed
through real intent to make a gift. Moreover, there is difficulty with
Code, IV. vii. 2. For I noted above, among the privileges, that what
is given by a soldier for an improper purpose is recovered; 4 whereas in &&, y. x \i
Code, IV. vii. 2 it is stated that the things given are not recovered. 2 -
The real explanation is that in this latter law the person making the
gift was not a soldier; and on this the privilege turns.)
9 Again, the soldier is amenable to the common law in the case of
Code, IV. xx. 14; for if he has borne false witness, he is under the juris-
diction [96'] of the judge in question, just like a civilian. So in the case
of Code, IV. xxi. 5. So also in the matter of taxes; for soldiers must be
treated in the same way as other people as regards collection. 15 But this * Code, iv. hi.
does not hold of the penalty of confiscation, when they fail to make '
declaration or are delinquent, as I have noted among the privileges.
So, again, in the case of Code, IV, Ixiii. 6, where, no less than
others, soldiers are forbidden to journey into barbarous and heathen
lands, passing beyond the bounds of the empire in the pursuit of trade.
Likewise, when a soldier performs acts that require the right and
the standing of an heir; for he is assumed to have taken up an inherit-
ance on the same terms as a civilian. <=c^,vi.xxx.
So when he kills a person by accident and not by design. 4 Again, 2 -
10 when he enters something for himself in the will of a comrade-in-arms ; e * v ^' ^
for he loses the legacy, though, by privilege, he escapes the penalty, ec^ix.
But there is exception in the case of a father writing in a legacy for 3 -5-
his son.'
n So, too, in the case of Code, I. v. 22; for the soldier, too, if a
heretic, loses passive testamentary capacity, as is there stated.
12 Likewise in the case of Code, I. xxvi. 4, where, supposing injury
to be inflicted upon a soldier, it is required that he appear in the court
of the judge of the offending party. So in the case of Code, IL iv. 1 1,
in that the birth of a son helps a soldier no more than other people to
the resumption ofzjideicommissum that he has renounced*
Further, soldiers remain in the power of their fathers.* Again,
entrance upon military service does not remove a soldier from the XXZVL 3*
jurisdiction of the court to which he had already been assigned. 1
A more diligent investigator will find additional cases.
HERE BEGINS
THE EIGHTH PART OF THE WORK
1569*64 F f
SOLE CHAPTER
ON THE CRIiMES OF SOLDIERS AND THEIR PUNISHMENT
SYNOPSIS
1 A person evading military service com-
mits a grave offence.
2 A father who surrenders a son for
punishment rescues him from the
same.
3 Straggler; who is so called.
4 Deserter; who is so called.
5 A deserter is punished more severely in
consideration of the nature of the
occasion and other circumstances.
6 A new recruit is punished with less
severity.
7 A former offender is punished more
severely.
8 Digest, XLIX. xvi. 3, 6 interpreted
differently than by other Doctors.
9 A deserter to the enemy is like a traitor.
10 Digest, XLIX. xvi. 3, II differently
interpreted than by others.
1 1 Intent is punished, even though it is not
carried out.
12 To defraud a division of soldiers by
misappropriating their pay is a serious
offence.
13 The punishment of hanging is worse
than that of the sword.
14 Punishment of the straggler.
15 How a man is punished who sleeps while
on guard.
1 6 He who does not return to his friends
when he can is like a deserter to the
enemy.
17 Whether a man captured by the enemy
has the right to make his escape, and
when.
1 8 A man captured in an entrenched posi-
tion has the same status as a deserter
to the enemy.
19 A man who surrenders to the enemy
forfeits the right of postliminy.
20 Accursius misinterpreted Digest, XLIX.
*vi.5,5.
21 The meaning of presidium.
22 It is left to inference to determine
whether a thing happened by chance
or by design.
23 Past life sheds light on intent.
24 Those who promise largely should not
be trusted overmuch.
25 Whether on any grounds it is possible to
desert from one party to the other
without loss to one's reputation.
26 A deserter to the enemy suffers 1 extreme
loss of civic rights.
27 For no reason may a subject desert to
the enemy.
28 [97'] The service should not be left at
an unseasonable time, even by a man
who is a non-subject.
29 A sovereign should beware of having in
his army more foreign than native forces.
30 The holding back or postponement of
| pay is no just ground for desertion, and
still less for desertion to the enemy.
31 Desertion from one camp to the other,
though it may be excused on other
grounds, is an act of inexcusable fickle-
ness.
32 What is right, and not what is expedient,
should be considered.
33 Honour often paid to deserters to the
enemy, and rewards given to them.
34 To be excused, desertion to the enemy
must be for a very cogent reason that
appeals to all.
35 It is inexpedient for rulers to scorn
deserters.
36 Treacherous men assume and lay aside
allegiance with the changes of fortune.
37 If you must change sides, once is enough.
38 Towns which surrender to the enemy
are guilty of betrayal, if they surren-
der voluntarily.
39 It is lawful to betray an enemy.
40 An earlier pledge is more binding than
a subsequent pledge.
1 [For paduntur read patiunlur.T
2I 9
220
A Treatise on Military Matters
[Part VIII
41 Faith kept with the enemy is not good
faith, but treachery.
42 Towns are excused which surrender to
the enemy under stress of great fear.
43 A deserter to the enemy is guilty of
treason.
44 Punishment of spies.
45 Whether it is permissible for a man of
high standing to spy out the plans of
the enemy by pretending desertion.
46 Honour and disgrace are rated according
to the standards of the state.
47 Intent and purpose qualify misdeeds.
48 Through eagerness to learn the plans of
others, scouts fail to conceal their own
secrets.
49 One who stirs up a mutiny should be
executed.
50 How mutinous soldiers are to be
punished.
51 Digest^ XLIX. xvi. 3, 21 interpreted
differently than by others.
52 Loss of arms is a military ofence.
53 New contingencies are not covered by
earlier orders.
54 Anarchy reigns where military discipline
breaks down.
55 Insubordination of a soldier calls for the
death penalty.
56 Those who fall out of line are guilty of
an offence,
57 Need abrogates privilege, or at any rate
suspends it.
58 A soldier who resists his officer commits
an offence.
59 It is no disgrace for soldiers to be
flogged by their officers.
60 A soldier ought to expose his life to
peril in defence of his superior.
61 A man is justified in looking out for his
own safety, when the onset is such that
it cannot be resisted.
62 The man who starts a retreat should be
punished with death.
63 Sloth on the part of a soldier is a crime.
64 A soldier feigning illness is severely
punished, even with death.
65 An officer who surrenders an entrenched |
position, even under fear of violence, is j
scarce excused. j
66 He who surrenders an entrenched posi- i
tion to the enemy is guilty of treason.
67 [98] What varieties of treason there
are.
68 He who fortifies and holds a citadel
against the will of the Emperor is
liable to the penalty for treason,
69 It is a capital offence to enter an en-
trenched position or stronghold by
scaling the fortifications.
70 He commits a serious offence who strikes
a comrade-in-arms.
71 Intoxication excuses a lapse.
72 A man who escapes by breaking through
his prison is guilty of death ; but not if
he escapes by other means.
73 A prison guard who allows a prisoner to
escape incurs the penalty of the latter.
74 A soldier who is disrespectful to a parent
is excluded from the service.
75 A soldier leaving his post should be
severely punished.
76 Punishments of soldiers.
77 Punishments are regulated in accord-
ance with the strictness and the dis-
position of commanders.
78 Decimation of soldiers for deserting.
79 Soldiers ordered to take their meals stand-
ing, as long as they were in the service.
80 Corbulo was an inflexible general, severe
even in regard to minor faults.
8 1 In the army, severity is better than
mercy.
82 Soldiers condemned for the theft of a
fowl.
83 Soldiers' biscuit, lard, and sour wine are
an abundant supply and provision for
the men.
84 Facility in securing pardon is an en-
couragement to wrongdoing.
85 Men avoid s erious faults z when they know
that there is no par don for slight failings.
86 In army life there should be the least
possible wrongdoing.
87 All punishments are discretionary with
the Emperor.
88 A corporal or sergeant is responsible for
the acts of his men.
89 A man dishonourably discharged may
not remain in the place where the
Emperor is.
90 Punishment for embezzling pay.
1 [For crimine read crimina.
Chap L]
an d Warfare
221
^ ABOVE I have treated at length of the privileges of soldiers, and of
their prerogatives and rewards. But inasmuch as some men are not
lured to noble and courageous action by simple virtue and honour and
the reward in many ways promised therefor, but yet are often kept
within the bounds of the allowable by the penalty attached to crimes
according to the following;
Fearing the law, the wicked cease from sin l
(for not only the state itself but also the military department would
be unbalanced, and, as it were, [98'] weak in one leg or lacking an eye,
if, after ordaining rewards for the good, it had not also enacted punish-
ment for offenders), I now pass on to the crimes of soldiers not those
which are common to them and other men, but those which are
peculiarly their own and to the punishment of the same.
Thus, then, a man commits an offence in enrolling for service
when he has not the right so to do. For, as I have already noted in
another place, it was not allowed by the Roman laws to enrol for service
at random ; a and the higher the rank taken, so much greater is the wrong
and the punishment?
1 A much worse offence is committed by a man who has been
accepted, and then evades service. Hence also, a father who holds back
his son is punished by exile and the loss of a part of his property if,
however, he does this when war is threatening. In time of peace, he is
clubbed to death.
2 Mercy is shown the son, however, if later he is produced by the
father; so Digest^ XLIX. xvi. 4, II & passage that usually is every-
where quoted by the Doctors in support of the principle that mercy is
shown a son (to the extent of lighter punishment) when his father
produces him in court. This is indicated also in Digest, XLIX. xvi.
13, 6; and such is the comment of Saliceto, d Felinus, 6 and Alciati/
Much greater is the wrong and the punishment of the father, if he
goes so far as to mutilate a son to the end that he may be less fit for service.*
Very serious is the offence of the straggler and the deserter. He
3 is a straggler (as the very name indicates) who 2 lingers outside the camp
and far from the colours, but with intent to return; whereas a deserter is
4 absent without such intent (just so, in a similar situation among slaves,
a vagabond differs from a runaway). This is shown in Digest, XLIX.
xvi. 3, 2 and 3, and in XLIX. xvi. 4, 13 ; though a gloss on XLIX.
xvi. 3, 3 recognizes a difference between 'being long away* and
'being away for a long time', holding that 'for a long time' is more than
'long'. The contrary is proved ^Digest, XLIX. xvi. 4, 13.
However, not every deserter is punished in the same degree, many
^ J Oderunt peccare mati formidiw poenae, [Cf. Horace, Letters, I. xvi, 52: Odenmt peccare bmi
mriutis amore. TR J
2 [A somewhat free translation of what is evidently a post-classical construction. ED,]
* See Dig.
XLIX. xvi 2.
b So Ibid., at
end.
*Dig. XLIX.
xvi 4, 10.
1.14.
* On Decretals
V.i.8.
*DePraesump~
tiombus, reg. I,
praesumpt. 4.
Dig, XLIX.
xvi. 4, 12.
222 A Treatise on Military Matters [Part VIII
points being taken into consideration: whether he deserted in time of
a i% XLIX. war or of peace, a also his rank in the service, the number of his cam-
XV1 ' s> paigns, and his past record (either to determine with what intent he
was away, or that his punishment be made less or greater in accordance
with his past record). So, too, the place, the circumstances, and
finally, the actual outcome are considered and whether he was away
alone, or went off in company with many, and perhaps drew them on
by his example; whether he is a new recruit 1 or an old soldier; and if a *
new recruit, whether it was a first offence or not. As these considera-
tions vary (some being of less or more importance than others), so they
augment or lighten the punishment; for in some cases these men are
reduced to lower rank, in others they are deported, and sometimes they
are even executed. Such are the rulings in Digest, XLIX. xvi. 5, I and
4; XLIX. xvi. 13, 6; XLIX. xvi. 5, 3, and XLIX. xvi. 3, 9, [99]
where it is shown also that a second offence is punished more severely.
And as the dereliction of a straggler is less, so also is his punish-
ment lighter. And in his case, too, the reasons are looked into 2 why
he was absent, where he was, and what he was doing, allowance being
made for ill health, for love of parents, and even of family connexions,
or if he was in pursuit of a horse or a slave that had run away possibly
even if he hurried off to see his mistress, as our soldiers frequently do.
For that such a fault may be condoned, the action of a Roman general
shows ; for, on learning that a certain soldier, an otherwise efficient man,
was often passing the night outside the camp for love of a courtesan,
he gave orders 3 that the woman be summoned, and, presenting her to the
soldier, said: Trom now on I shall find you more attentive to business.'
However, do not proceed to emulate that soldier in his fault, but in his
courage; for not all leaders are so considerate.
Furthermore, both straggler and deserter should have an oppor-
tunity to present their case, and to show that they were absent under
such conditions that they deserve pardon or a milder punishment. So
>NO. 14. Digest, XLIX. xvi. 3, 7; and see below. b
In like case with the deserter is the man who fails in attendance
i5* fe^' ( execu ti} U P OI 1 a commander 4 or governor (this 5 1 take to apply to the
suite (sequel^ as being derived from the verb sequor ('follow') others 8
may understand it as they will) ; for that man is little short of a deserter
who fails to attend his commanding officer. What the gloss there d
understands in regard to an exsecutor is not at all in point.
Most serious is the crime of the deserter to the enemy, his act
differing little from betrayal. Such a man is to be counted an enemy, 9
and not a soldier; 6 and it is no wonder that he may be put to torture,
4 > r [For Tiro m read tirone. ED,] 2 [For examinariul read examinantur.TK.]
3 [For iusat read iussit. TR.] + [For propasiti read praepoati.Tb]
5 IModem texts of the Digw (read here excubatio ('watch'), which would call for no discussion. TR,]
Cha P- I] and Warfare 223
thrown to wild beasts, or even hanged 1 punishments degrading to a
soldier, as was pointed out in the discussion of privileges. 3 * See 04.
In fact even the man who starts 2 to desert to the enemy, and who X ^ IX - ** *>
10 (to quote the comic poet) C arranges3 flight'," is counted a deserter, and, { [f Terence
if caught, is executed; so Digest, XLIX. xvi. 3, n, near the end. The Eunuch, '
This seems the more obvious meaning than to say with the gloss there :
'volens signifies one who voluntarily deserts to the enemy' (on this see
gloss and Doctors on Digest I. viii. n). For who will be designated as
'caught', unless a man taken in the act i.e. in some very serious act,
and when he has already begun 4 to perpetrate and accomplish the
crime ? Again, simple intent is punished with the penalty of accomp-
n lished 5 crime (on this see Baldus ). And what man deserts to the
1
Or, crucified. TR.] 2 [For ccpU read cotpit. TR,]
[For ceptum read cocptum.T*.] 5 [For conswnoti read c<msummati.Tx.]
[Egus and Roncillus. E0J
i.e. they kept the names of dead men on the roll, and collected their pay. TR,]
enemy except 'voluntarily'? Furthermore, support is found in a jj'^'/'
passage in Digest, XXL i. 17, 8. pp ' '
And there is no doubt that if a deserter to the enemy compounds
this wrong with another, he deserves a severer punishment (for even
the manner of death was made more painful). A case in point is that
of those two Allobroges 6 [99'] in Caesar's army, who were reprimanded
by him for making false reports as to the number of horsemen and
appropriating their pay. 7 Deciding to go over to Pompey, these Gauls
planned to kill a cavalry commander; not succeeding in this, they
raised a large loan in Caesar's camp, and deserted to the enemy, as
Caesar himself records in his Commentaries on the Civil War* d [i:
And to touch on this point in passing (though, as a matter of fact,
it is not foreign to my topic or to this work), it is no light crime to make
a false report of the number of soldiers, and to appropriate their pay;
12 and the penalty for so doing is severe. So it is ordered in Code> I. xxvii.
2, 9 by the Emperor, whose exact words I have thought good to
quote: Tor generals and tribunes', he says, 'aside from the emoluments
provided for them should look rather to my liberality for the reward
of their services ; and they should not seek to enrich themselves through
the leaves of absence of the men 8 or their wages. 7 For, says he, soldiers
are appointed for the defence of the province; and provision is made
for the emoluments and pay. And they ought to look for advancement 9
to higher rank and for the attainment of better positions as a result of
their labour and services, without seeking these base gains. Such is the
statement there. But this is little regarded to-day by our captains (as
they are called) both of foot and horse; for they have no more certain
income than what they derive from this sort of dishonesty.
8 For commeofis read commotibus. The leaves of absence were paid for by the soldiers. For this
ancient abuse, cf. Tacitus, Histories, I. xlvi. TR.] 9 [For prom read provehi. T**]
224
A Treatise on Military Matters
[Part VIII
a [XXX. xliii.
[xxiv. xx.
6.]
xvi. 3 4-
d ig,XLI
xvi. 3, 5.
* Same law.
'ZJig.XLIX.
xvi. 10 ; and
Martinus
LaudensiSj DC
Prinripibus,
qu. 3 182.
xvi. 5 J 5*
*OnV.m
in Sext, reg. 4.
XXVIII. i. 13.
J Consilium
284,110.6.
But, to come back to the subject of deserters, in the annals of the
ancients also we read that such men were very rigorously punished in
those days, 'The punishment of the deserters', says Livy, a 'was more
severe than that of the runaway slaves; for those who had Latin rights
were beheaded, and the Roman citizens were crucified. 3 (This goes to
prove what I said above, namely that slaves were punished less severely
than free men, and citizens more severely than allies or foreigners; and 13
that the punishment of hanging 1 is worse than that of the sword.) In
another place* Livy says again: Three hundred and seventy deserters
were recovered; and when these were sent by the consul to Rome,
they were all beaten to death with rods in the Comitium^ and their
bodies were thrown down from the Tarpeian Rock,'
With regard to my statement above about stragglers, namely that 14
they were never punished with death, there is this exception: unless
they remain away when the enemy are close at hand, or withdraw from
the intrenchments 2 at such a crisis.
But the man who leaves a picket-post is worse than a straggler;
and he is disciplined in accordance with the character of his act. d
(Generals of our day punish with death, not only the man who deserts
his post, but also one who there falls asleep. This I think a barbarous
proceeding, except when the situation is critical, e.g. when the enemy
are close at hand. For such culprits, therefore, the punishment should 15
normally be less than death. 6 ) Further, a deserter from the Emperor's
watch was executed/
[100] Like to the deserter is the man who, after being captured by the 16
enemy, fails to return to his people when there is opportunity. 15 For he
who at heart is with the enemy has really abandoned his own people
and become a deserter, as is stated in Digest, XLIX. xv. 5, 3, and 1 2, 9.
And this renders doubtful what was said by Petrus de Ancharano 11
(who is quoted and followed by Aretinus; 1 and both are cited and fol-
lowed by Natta 3 ), namely that, since even to-day in a war waged by
Christians against the Turks the rights of capture and enslavement are
in force, men who are captured will have no right to escape from their
owners; for I do not think this true without reservation. In fact such
persons ought ever to have escape in mind, and to accomplish it at the
earliest opportunity, if they would avoid being classed with deserters
to the enemy.
And this point is excellently treated here by Aretinus, who says
that it is not permissible for such people to escape with the idea of
living in freedom among those enemies and foreigners (for that is to 17
make a theft of themselves) ; but that it will be lawful, if they escape
with the idea of returning to their own people as many of those
Spaniards did who were captured at Castelnuovo in Illyricum.
1 [Or, crucifixion. TR.] * [fossalo is now read fat fossa TR.] 3 [For on. read j. ED.]
Chap. I] and Warfare 225
However, it perhaps is not unreasonable to restrict this last so
that the privilege will hold merely as long as war is in progress, whereas
when peace has been made with a compact following, perhaps it will
not be permissible to escape, unless a separate agreement is made
regarding prisoners; for when a war is over, there is a lapse also of the
law of war and of nations that allows one party to acquire at the expense
of the other. And to my mind this is proved by a phrase in Digest,
XLIX. xv. 5, near the beginning (Tor if a person returns during the
same war'); for these words 'during the same war' would be super-
fluous, if it were permissible to return at all times. However, I fancy
that no one would be as punctilious as this. Moreover, it is the law that
I am setting forth, and not what the actual practice is, nor yet what it
should be.
In like manner, a person is regarded in the light of a deserter to
the enemy who goes over to them in time of truce, or who even makes
his way to foreigners with whom there is no war, nor any treaty or
friendship. 8 * Dig. XLIX.
18 In Digest, XLIX. xvi. 5, 5, the more drastic rule is laid down xv> I9 ' ti -
that the man who is captured in an entrenched position is on the same
footing as a deserter to die enemy. This is extremely severe that fear
of violence at the hands of the enemy should work as much ill to a
soldier as the shameful purpose of deserting one's party. Yet Accursius
here so understands this law. And the principle is even more clearly
maintained in Digest, XLIX. xv. 17 and 19, 4; for in these two pas-
19 sages it is ruled that the man who surrenders when overcome by
force of arms, 1 as well as the man who deserts to the enemy, loses his
right of postliminy.
20 However, on Digest, XLIX. xvL 5, 5, Accursius is wrong in
explaining praesidio as 'scouting' or spying 5 , as if it were derived from
21 praescio ('learn in advance'). For presidium signifies an entrenched
and fortified post that is guarded and defended by soldiers. The army
recovered the citadel', 2 says Livy,* 'for its first attack had instantly dis- b pv. mi, 9.]
lodged the men in the fort (praesidium). Marauders slipping away
from the fort [100'] without leave had made possible this attack*.
Once more, praesidium is a designation for the military force set
to defend a place. Says Livy again: 6 'He sent a messenger also to c [XXVll.xii.
Regium, to the commander of the garrison (praesidium) which had ^
been stationed there by the consul/ So at another point: 11 'The A pxvii. xv.
Hirpinians and Lucanians surrendered, delivering up the garrisons 2 J
(praesidia) of Hannibal which were in the cities/
In a far different signification, presidium is used metaphorically 8 #*. XXXIL
of the money which the prudent head of a household lays aside for XXIXT *'
1 For or mis victis read arms victos (cf. the Digest reading amis weft). Ta.]
* [For Areeram read ar^m.TR-]
1569.64 G g
226 A Treatise on Military Matters [Part VIII
emergencies. (Hence that quotation by Celsus to the effect that money
Dig, xxxii. without a reserve is a poor reliance. 81 )
l ' 79 " But, to return to my subject, it is indeed hard that those who have
suffered extreme ill fortune, surrendering only after being overcome
by force of arms, should lose the right of postliminy, and even be sub-
ject to punishment, if they chance to make their way back to their own
people. Still we may say with the Jurisconsult 1 in Digest, XL. ix. 1 2, I :
'It is indeed hard, but it must be endured; for thus it is ordained.'
There was a case of this sort in former days after the battle of
uP^fn* 11 ' Cannae, b when some thousands of Romans, who were in the camps,
surrendered to Hannibal They might have been ransomed at a low
figure; and the government was so short of soldiery that it bought up
eight thousand slaves and enrolled them in the army. Yet it would not
agree that those surrendered men be ransomed at public expense; and
even if they were ransomed with private funds, it nevertheless ordered
them not to remain in Italy nor to serve there. And if they served
elsewhere, they were to receive no rewards or honours; and they were
not to return to their homes, so long as Hannibal was in Italy.
But if a soldier while on a journey falls in with the enemy, who
c i>, XLIX. make him a prisoner, he is pardoned on proving this. And in case of 22
XLIX. xvL's, doubt, whenit is notknownwhetherthemanwas captured or whether he
5 ; XLDC really deserted, recourse is had to inference, and his past record is looked
into. If previously he has proved a good soldier, his statement at this 23
time is credited; but if he has been a straggler, or idle, or careless, his
word will not be accepted, especially if he has come back after being
away a long time; see the laws cited.
This needs to be weighed carefully in regard to soldiers of our day,
particularly those Italians of the rank and file, who are in the habit of
passing over from one army to the other with the greatest readiness.
For if under examination they try to excuse themselves on the ground
that they were captured and did not desert, credence will scarce be
given them unless in accordance with the distinction above made.
But to-day this charge and this crime are lightly regarded because
of the agreements which are often made, both in war and in peace, to
the effect that if deserters are captured, they shall be regarded as on the
same footing with all other soldiers. Furthermore, blame attaches
to those whom we call captains and colonels. For, when raising new
levies and enrolling new companies, they proceed without making
strict examination, and care for nothing else than filling their quota,
hiring and buying up the men like cattle, at the lowest possible price.
And there is no one to recall to a strict standard; in fact, [101] perhaps
this would not be profitable for those who to-day are engaged in the
struggle over hapless Italy.
1 [Ulpian. ED.]
Chap. I]
and Warfare
227
However, there is pardon for deserters to the enemy in a single case,
namely when they give information with regard to brigands and other
24 deserters, or win this immunity by some like outstanding service.
But even so, ready credence should not be given to those who promise
much. a
Before I proceed to other topics, I desire to linger a little over this
matter of deserters to the enemy, inasmuch as the practice is of
frequent occurrence in this unhappy and corrupt age of ours. For on
all sides we see occasional Frenchmen, and many more Italians,
deserting from the French army to the imperial and Spanish army,
and, on the other hand, Spaniards and Germans, and these selfsame
Italians deserting from the latter army to the former. More shocking
still, many, especially the Italians (I am speaking of the common men
of the rank and file; for the nobles abstain from this evil practice) are
in the habit 1 of crossing repeatedly from one army to another with
greater frequency than bees fly from the flowers to their hives.
25 We must consider, then, whether this sort of thing was allowed
either by the practice of the ancients or by their law, and when it was
permitted. In the first place, then, I think we should distinguish
between subjects and non-subjects (here under the general designa-
tion 'subjects' I include also vassals and many others who by birth or
domicile are in a dependent relation).
As for subjects, I hold that desertion to the enemy is absolutely
forbidden. Consequently no explanation or plea excuses them even
supposing that they are defrauded of their pay, or dismissed from
service, or, finally, even that they have escaped from prison and
changed their place of residence. For without the guilt of treachery
what man may join the enemy and bear arms against his sovereign and
his country ? when even a person who plots against its prosperity is
open to the charge of rebellion and treason (as in Extrav. Decretales,
'qui sint rebelled? which has reference to mere verbal injury, accord-
ing to a gloss there), and when even one who disobeys orders is guilty
of this crime ? c
26 Consequently deserters of this sort deservedly suffer extreme loss
of civic rights.* For what valid excuse can be found in the stopping of
pay? for we see that in fact the provincials provide rations; moreover,
even deserting the service is less blameworthy than deserting to the
enemy; and, finally, we read in Xenophon 6 of the Spartans who were
serving in the island of Chios under Eteonicus, that to the end of the
summer they lived upon the things which they gathered from the fields
with the consent of the owners, even working for wages, as pay was not
forthcoming, being determined not to abandon the task imposed.
Again, what valid excuse can there be for those who leave their
1 [Strict symmetry would require sofac for sokant. TR.]
xvi. 5 ,
b Feudorum
Libri, F. App.
tit. 3, word
machinari
\machinanlur],
c Ibid., words
rebellando and
tenare*
1-
Hdknica, II.
M-
228
A Treatise on Military Matters
(Tart VIII
14.
b [PartII,chap.
v,no.9.]
c [Li\7,XXV.
xxxii. ft]
d XXIV.[3dix.
8.]
[XXV.xxxiii,
6.]
*ReiMilitaris
Instiluta, III.
i. at end.
s On Feuds,
Bk. I, tit.
xvn, chap, i,
near the bV
ginning, 2nd
phrase (quamt
country as a result of crime, heaping wrong on wrong ? For though he
was the best of men, and had been condemned with the greatest injus-
tice, not even Socrates thought it right to break the laws and to escape 27
from prison, [101'] as is described by Plato in the dialogue called Crito.
Desertion to the enemy, therefore, is absolutely forbidden to subjects.
But the case of the non-subject is very different. For he is held by
honour only; hence its claims must especially be taken into account. 28
Such a one, then, may not abandon service at an unseasonable time,
just as, in contracts, it is not permissible for a partner to withdraw
from a partnership at an untimely juncture. 8 " This fits with what I have
said above, at the beginning of this work,* in regard to a vassal who
deserts his lord in war, but not in actual battle. Who would not justly
condemn the action of the Celtiberians, who were serving with the
elder 1 Publius Scipio in Spain ? For, won over by Hasdrubal with the
help of a bribe, they deserted the Romans in the very crisis of the action,
the enemy being close at hand, thinking this no heinous crime in that
they were not actually attacking the Romans, though, as a matter of
fact, they were leaving them to be butchered by the enemy, as the event
proved.
(These are the Celtiberians whom the Romans first employed as
mercenary soldiers, as Livy d writes, adding that this episode should be 29
a perpetual example and a never-to-be-forgotten warning that generals 2
should not put such reliance upon foreign soldiery that they fail to
maintain a large preponderance of their own forces and troops 6 a rule
which the Romans consistently observed, according to Vegetius.) 1
In like manner, almost in our times, Ludovico Sforza, whom they
still call 'the Moor', through the defection of the Swiss lost Milan, and
fell into the hands of Louis XII, King of France. Therefore, mercenary 3
soldiers and auxiliaries will do wrong in deserting under such circum-
stances.
In the case of a vassal, Baldus* calls this treachery, even when the
man is not pledged to aid the lord. And with this de Afflictis 11 agrees,
adding that, even in the case of non-vassals, one who so behaves is
responsible ad interesse.
And for non-subjects, too, I should not count it a legitimate 30
excuse, if they absent themselves on account of arrears in pay (a com-
mon contingency in war times) -provided, however, that they are able
to secure food from other sources, or that the ruler 4 meanwhile looks
out for their subsistence particularly as this can be done, if care is
exercised, through the help of the provincials and without expense or
loss to them (namely, by deducting the cost from the pay, when there
1 [Father of the victor in the Second Punic War. TR.]
3 [For Principes read princcps, or change the verb to the plural. TR.]
3 [For mer tenon j read mercenarii. ED.] 4 [For Principes read princeps.-
Chap. I] and Warfare 229
is cash in hand, thus making payment for the goods taken. This, how-
ever, is not the present practice; but it would be the act of an excellent
sovereign to introduce it).
However, if there is legitimate ground for withdrawing, and the
departure does not fall at an unseasonable time, and if leave and per-
mission to go is asked, I think that it is possible to withdraw without
31 incurring disgrace, especially if a man goes to his home, and not to the
enemy; for even in the case supposed, a man could hardly cross over
32 from one camp to another without being guilty of fickleness, to say the
least, particularly among Christians, who ought to judge of things on the
basis of what is right, and not on the basis of their personal advantage;
for I have akeady noted above that it is not permissible for a mercenary
soldier to aid one unjustly engaged in war.
33 Yet, [102] in history we read that honour was paid and rewards
were given to many deserters and persons who crossed over from
one party to another. So at Arpi, in the Second Punic War, a little
less than a thousand Spaniards, who were there on guard duty for the
Carthaginians, went over to the Romans, after making the condition
that it be allowed the Carthaginians who were with them to depart
unmolested. And the Romans subsequently found their service to be
valiant and reliable. So Liyy. a ^ _
C 0n account of some pique, I suppose', says Livy at another point, 13 b J SIIL xlrL
'or because of the prospect of more genteel service, 1 two hundred and e i]
seventy-two horsemen (both Numidian and Spanish) deserted to
Marcellus. During the war the Romans found their service reliable;
and later, as a reward for their valour, 2 land was assigned to them to
the Spaniards in Spain, and to the Numidians in Africa.'
Livy again relates that Sosis, a Syracusan (through whose betrayal [xxvi. xxi.
Syracuse was taken at night), and Moericus, a Spaniard (who had ^.]
betrayed Nasus, 3 the heart of Syracuse), were given generous rewards,
Sosis receiving five hundred half-acres of land and a residence at
Syracuse, while to Moericus and his Spaniards were given the city of
Murgantia and estates in Spam/ Furthermore, the person who^ had
enlisted Moericus was given four hundred half-acres of land in Sicily.
Muttines also, an African, was actually given citizenship/ ^ _ ^ ^y v
And Livy says that before this time those of the Veientines,s
Capenians, and Faliscans 6 who had deserted to Rome were made
citizens, and presented with land. So sensible were the Romans of
benefits received, and so punctilious in repaying a favour.
It would not be seemly to number among deserters King Masi-
nissa, who was so eminent a long and so steadfast a friend to the Romans ;
' [After militia* omit mz7&r.-TR.] 2 [After w omit to^-TR.]
3 [For nassum read Nawm.-EA.] * [As a matter of fact, these grants vre m Sicily.-TJt.]
s [For vaaauM read F^MW.ED.] e [For Faliscorem read Fdi$eorum.-UD.]
230 A Treatise on Military Matters [Part VIII
though, as a matter of fact) he 1 had long fought on the side of the
Carthaginians. But he went over to the Romans with large honour to
himself, and with dignity and nobility. For, being the most powerful
of all the rulers of his day, he broke off one friendship, and held and
cherished the other steadfastly down to extreme old age. Both in former
times and in our own day, many others might be cited as securing honour
and emolument by such transfer of allegiance. But no one of them is to
be classed with this king.
And, to conclude, I think it more fortunate and honourable if a 34.
person remains faithful to one ruler only. But if it becomes necessary
to go over to the other party, it should be for a reason so pressing, so
manifest, and so justified in the eyes of all that honour and reputation
be safeguarded above all else.
Rulers, on their part, should beware of esteeming deserters lightly 35
and of forgetting to reward and honour them. For in failing to meet
the claims of decency and generosity, they are not looking out for their
own advantage either; for, warned by the experience of those who have
been shown scant courtesy, other deserters will take greater precaution
in looking out for their interests. Yet I knowpersons who were promised
mountains of gold, and who, after desertion, lacked for bread, and
save the mark! they lack it still; but, as the old saying has it, Plato
forbids to go into particulars.
And there are men who are faithful to their party as long as they see 36
fortune ranged therewith; but when fortune wavers, [102'] then they
too change 2 allegiance with it. These I shall warn by a single example
what they had better do, if they desire to look out for themselves.
Altinius had caused his city Arpi to desert to Hannibal after the
disastrous battle of Cannae. Later, when he saw the Roman interest
recovering and in the ascendant, he changed his mind and came
secretly by night into the Roman camp, promising to deliver up Arpi
for a consideration. The matter was referred to a military conference,
and the consul delivered the opinion that the man ought not to be
trusted, but rather flogged, and executed as well, being a person who
shaped his policy and changed his allegiance with mutations of fortune.
But, on the other hand, Fabius, who was father and lieutenant to the
consul, claimed that they ought to take into consideration the time and
the situation. At length it was agreed that Altinius should be detained,
and sent away secretly to a friendly state, there to be held in custody,
*[Livy,xxiv. so that after the war was over they might dispose of his case. a This is
x V 'J the end and the fate of such persons.
I repeat the caution that no one should desert hastily, nor for 37
slight cause, nor yets frequently, even though there be a valid reason.
1 [For ipsi read x>w.~Tn.] * [For muitant read fwwW.-TR.]
3 [For ne ve read neoe. ED.]
Chap. I]
and Warfare
231
Indibilis, a Spanish chieftain, on deserting along with his brother
Mandonius from the Carthaginians to Scipio, thus spoke: ( l am well
aware that the name of deserter is a hissing to former friends and a
matter of suspicion to the new. But the occasion, and not the mere
name, ought to be considered. 331 These points, therefore, should be
pondered by those who meditate desertion.
38 Again, a sort of desertion and betrayal 1 is perpetrated by towns
which voluntarily go over to the enemy. The nature of the punish-
ment called for by such action is gathered from its result and the
verdict of the injured lord; and this is shown by an ever-to-be-remem-
bered example.
After the above-mentioned disaster at Cannae, Capua deserted
the Romans, and many other cities and peoples followed suit; later it
was recovered by the Romans through force of arms. The consuls who
conducted the siege directed that all the senators taken alive should
be beheaded; and they confiscated the goods of others who had escaped, 2
The children and wives were sold as slaves, excepting daughters who
had married before the city was stormed. Other nobles were thrown
into prison, with intent to look into their cases later. This you will
find at greater length in Livy. b
But the fault of the Capuans was aggravated by the fact that they,
a powerful state, allied and friendly, and in fear of no violence from
the enemy, had been first to desert, and by their example, too, had
wrought injury. On the other hand, at that same period, when the
Hirpinians, Lucanians, and Volscians, after surrendering Hannibal's
garrisons, gave themselves up to the consul Quintus Fulvius, they were
more mercifully treated by him, being given a mere verbal reproof for
their past wrongdoing. For they too had deserted with the Capuans,
but were received back with clemency; so much difference does it
make whether people return voluntarily, or under compulsion, to the
former lord.
39 And, to touch on this point in passing, I think the peoples named
40 above are deserving of praise for thus deserting Hannibal For an
41 earlier allegiance should take precedence over a later, inasmuch as the
later rests, not on honour, but on perfidy, or at any rate on violence
and intimidation; [103] and the earliest possible opportunity to get
clear of it cannot be neglected without blame, as has already been said
above of the captured soldier, whose failure to return to his people at
once, when there is opportunity, puts him on the footing of a deserter. 4
Consequently I do not acquit of wrong and blame many towns in
this Piedmont district of ours, which in the recent wars were occupied
by garrisons of the enemy, and though occasion frequently offered, and
[For prMtmespifapsproditwnis staid be read. Tfc.]
, i.e, eoaseraitf. "En.]
ivy,
TIL xvii.
bXXVI[xiv.
e [Livy,
XXVII. xv. 2.]
232 A Treatise on Military Matters [Part VIII
few soldiers were on duty, 1 they either feared or neglected to declare
for their former lord. So far am I from charging with treachery a man
who takes the opposite course.
It makes a great difference, moreover, whether a state deserts to 42
the enemy, or whether it is invaded with armed force by them and
seized. In one case the wrong is great, and it may be punished severely;
but what wrong is done by those who are coerced ? Or how much less
are they to be esteemed than formerly, if they are recovered ? The
* [VI. iit.] Aecpians, 2 says Livy, a were besieging Sutrium, a city allied with the
Romans. When the Sutrians could hold out no longer, they sur-
rendered their city. After recovering it by force of arms, the Romans
restored it to the townspeople unscathed and uninjured by themselves
or by the enemy; for the latter had not plundered it either, because
they had taken it by surrender.
The army was then conducted from Sutrium to Nepete, which was
held by the enemy, who had taken it by surrender, a faction of the
Nepesines delivering over their city. But when it, too, had been
recovered by force of arms, those responsible for that surrender were
beheaded, while to the unoffending mass of citizens their property was
bpivy,VLx.] restored. 15
(I would that such examples were kept before the eyes of the
generals, prefects, captains, and soldiers of our armies, who plunder the
unhappy districts that without any fault on their part have fallen
into the hands of the enemy in fact (more 3 s the shame !) sometimes
even through the carelessness of our soldiers, and perhaps even by the
treachery of some of them. But whether they retake these places by
force of arms or even by surrender, they plunder as heartily, and abstain
not a whit more 3 from murder, debauchery, and pillage, than if they
had taken a city of the Turks at the cost of much labour and bloodshed.)
And it is not strange that in that distant age mercy was shown to
the coerced and the innocent. For the states of that time were so
considerate and fair that, in the case of peoples whom they were not
strong enough to defend from the enemy, they allowed and even urged
them to consult their own interests and to give allegiance to the foe.
In the Second Punic War, the Petelians asked the aid of the
Senate against the Carthaginians. On reviewing the forces of the
government, the Romans were forced to confess that they had not
strength enough to help these far-away allies ; the latter might therefore
consult the interest of their own state, inasmuch as they had satisfied
c [xxiii. xx. every claim of loyalty to the full. Thus Livy. c
4ff '^ The Spartans, too, acted nobly, according to the record of
1 [For remansisset read remansissent. TR.]
* [The reference is to the Etruscans, not to the Aequians. TR.]
3 [The sense requires magi* for minus. TR.]
Chap. I]
and Warjan
2 33
Xenophon. a For when Polydamas of Pharsalus had come to Sparta to
beg for help against Jason the Thessalian, after spending all [103'] his
own resources, they confessed that they were not in a position to assist
him; therefore, he might depart and take measures for his own safety
and that of his state.
The above cases were less complicated and clearer, the following
much more difficult. The Athenians were besieging Byzantium (the
Constantinople of to-day), and the Spartan commander, Clearchus,
who was within, apportioned to his soldiers all the grain to be found in
the city. Thereupon the townspeople betrayed the city to the enemy;
and when at Sparta the ringleaders were charged with treachery, they
appeared there and made the following plea: 'We aimed not so much
to betray the city as to save it; for we saw all the people perishing of
hunger 1 and privation. 5 On this plea they were acquitted and allowed
to go.*
To our generals all this would seem moonshine and old wives'
fables. And what those nations did solely under the guidance of natural
reason, this our generals forget namely, to regard right and justice
and the safety of peoples; yet they are persons who never set out from
home without divine service and attention to the claims of religion.
That those cities are excused which surrender to the enemy under
stress of well-grounded fear is held also by Imolensis, Socim, d and
Decio ; e and so Felinus f states. I apologize for lingering over these small
details that are so remote and foreign to the purpose of our work; but,
having told of the punishment of the Capuans, I cannot refrain from
relating also how, in that selfsame city of Capua, favour was recom-
pensed and repaid to those who were found to have served the interests
of the Romans.
It was discovered, says Livy, g that there were two women, Vestia
Oppia and Pacula Cluvia 5 z of whom the second, a courtesan, had secretly
supplied food to Roman prisoners who were in dire need, while the
other had daily made sacrifice for the safety and victory of the Romans.
So when Capua was taken and plundered, 3 both by Senate decree and
vote of the people liberty and their goods were restored to these women,
and they* were bidden to come to Rome for the purpose of asking from
the Senate whatever rewards they desired. A city richly deserving to
rule, and to have held, and still to hold, the allegiance of all!
43 Deserters to the enemy were liable not only to the charge^and
penalties above mentioned, but also to the charge of treason. So Digest,
44 XLVIII. iv. 2 and XLVIIL six. 38, I, where it is stated that they, as
well as spies (i.e. those who report on our plans), are burned alive or
i. 2 ft.]
[Xenophon,
elleiri
15 ft]
dub. 2.
*Consili&, III.
39, no. 8.
t Consilium
690, no. 14.
* On Decretds t
II. 2. 13, last
col.
8.]
famagj i&.fame. TR.]
For Bestiam A_'
For directa read direpta
.._., . Paculam Ctuviam.'E.V.]
* [For ipse read t/ww.'TR.]
234
A Treatise on Military Matters
[Part VIII
& Dig. L. iv. i,
i;L.iv.i8,
27;
b Dig, L. iv. 14,
at the begin-
ning; L. iv. 18,
i-
c De Habilitate
et lure Primo-
genilurae.
xxxiv, at the
*Dig. XLVII.
ii. 54, at the
beginning j
XLVII. x. 33.
f [Horace,
Odes, III. '
and iii. 14 ff.J.
hanged. Further, it is said in Digest, XL VIII. viii. 3, j 6 that deserters
to the enemy may be killed, wherever found, as enemies of the state.
Here arises a question about which I have often heard a discussion 45
among soldiers of rank, namely, whether 1 at the order of his general or
his sovereign it is permissible for a nobleman to desert to the enemy,
with the idea of spying out their situation and reporting it. Many
judged this to be discreditable business for an honourable man of high
standing; because both the act and the penalties are degrading; for 46
anything is degrading which all good men so regard, inasmuch as even
what is honourable [104] is determined either bylaw or by custom ; a
again, an action brings no honour if it cannot be performed without
loss of dignity.* (Hence Tiraqueau said also that custom confers and
takes away nobility. Therefore, any action will be a matter of disgrace
if, according to the standards of those concerned, it is so classified, as
he himself here shows at great length. Hence he adds d that usage and
common consent make an act honourable or disgraceful.)
Those upholding the other side in the argument declared that the
action, as described, was not disgraceful, and that it ought not to be so
classed; though the case is different with the low and base fellows who
follow this pursuit as a business for pay, not, as the man in question,
to assure the well-being of the state; for intent and purpose differen- 47
tiate wrongs. 6 Moreover, to imperil one's self for the safety of the
public and in the service of the Emperor is a great honour. So, too, the
poet of old 1 lauds such action, when he says:
Joyous and splendid it is to die for one's country.
As showing that such action is not disgraceful, we may cite
among the Romans the case of Sextus Tarquinius, who deserted to
Gabii, pretending cruelty and hatred on the part of his father, as
is recounted by Livy. g And among foreigners, we might mention
Araspes, a very distinguished Mede in the train of Cyrus, who by the
latter's orders fled to the Assyrian king, and, after spying out the
enemy's resources and plans, returned to Cyrus and was complimented
by him in open assembly. So Xenophon relates. 11 Lately, too, at Milan
there was captured a nobleman of the French army, who, unknown and
in the dress of a civilian, and lacking the regular military watchword,
attempted to get possession of the citadel; and this brought him
neither harm nor punishment. (And I do not see what is the difference
whether you go over to capture a citadel, or to spy out the enemy's
plans; and whether you are in the public eye, or 2 quite unknown.)
Another example is found in the case of those Roman soldiers who
were selected from the higher ranks by Scipio and sent in the guise of
slaves with his envoys to Syphax and Hasdrubal, the idea being that
1 [For Ueeat ne read liceaine.ED,]
Chap. I]
and Warfare
2 3S
while the envoys were talking of peace, these men should range through
the enemy's camp and observe everything. Thus finding it to be con-
structed of reeds and straw, by a night attack with fire Scipio won a
victory over the enemy. a (More than once I have feared this in regard
to the camp of the Emperor. For all the German soldiers build
barracks for themselves in camp after this fashion.) 1
My own view is that the act of the above-mentioned 'deserter'
was courageous and loyal, as well as very dangerous, but that it was not
dishonourable. However, the rank and file of spies 'snatch their food
out of the fire', as the comic poet puts it:* and, if detected, they pay
the penalty with their lives. So, Digest, XLIX. xvi. 6, 4, though this
law refers to those who disclose the secrets of their own party, not those
of the enemy. 2 [104'] But the punishment of the latter, if caught, I
have observed to be similar.
48 Again, Tacitus indicates that trust reposed even in spies who serve
with honest intent is a perilous and uncertain venture; for, says he, e
through their eagerness to learn the plans of the opposing enemy they
fail to keep secret their own. And, being common and low persons,
there are few among them that do not work in the interest of both
parties, in order to lessen the risk to themselves,
g A soldier forfeits his life also, if he has stirred up a dangerous
mutiny ; d but in case it is less serious, not extending beyond shouts and
complaints, he is disciplined by reduction in rank, or even by discharge
from the service, 6 according to the strictness or even the compassion of
the general. For this and all other military offences are punished with
varying degrees of severity.
Scipio inflicted punishment on the ringleaders of a mutiny in
Spain, beating with rods and beheading thirty-five of them.' Far more
drastic was an action of the Senate itself; for, though four thousand men
were involved, it ordered that an entire legion be executed for having
seized Regium after killing the leaders of that commonwealth. 8 Again,
Drusus, son of Tiberius, suppressed with the greatest severity that
mutiny in Pannonia of which I have previously made mention, quoting
from Tacitus. For he ordered that the leaders in the mutiny, Vibulenus
and Percennius, be summoned to his presence and executed, and he had
their bodies buried in his own quarters. The rest of the agitators were
hunted down and massacred by the centurions and soldiers. 11
Still more shocking was the punishment meted out at that period in
the case of a mutiny in Germany. 1 For the men who were loyal, acting
together and previously instructed by their commander, made a sudden
attack with drawn swords upon the others, who were off their guard
and expected no such thing, and slew them, doing no small execution.
1 [Compare the winter camp of Quhtus Cicero, Caesar's Gallic If or, V. adiii. TR.]
2 [After hostilium a full stop should be marked, Taj
a[Livy,XXX.
iv.]
b [Terence,
Eunuch, 491.]
d Dig. XLIX
XXVIII. 26ff.]
xxviii. 2 ff.]
h [Tacitus,
Annals, I.
nix, 4*]
1 [Tacitus,
Annals, I.
xlviiuj
236
A Treatise on Military Matters
[Part VIII
* [Annals,] I
[xliv].
xvi, 3, 13.
xvi.i4,i.
xvi. 14, at
end.
xvi. 3, 14.
eflig.XLIX.
xvi. 3, 15-
b[Livy,VIII.
vii.]
1 not. 150
(Mandatitm
-
J col. 14.
Another section of that same army for a sort of fateful poison had
infected all was purified of mutiny in the following fashion. As if
called to assembly, the legions stood with drawn swords, and the suspects
were exhibited one by one upon the tribunal If the audience cried
out 'guilty', the man was thrown down headlong and dispatched; if he
was passed as innocent, he stepped down scot-free. So Tacitus. 1
But in our 1 times, almost yearly we witness mutinies and all but
revolts of the soldiers, even in a single garrison. Yet there never seems
to be any correction or punishment. It is no wonder, therefore, that
there is no discipline and no respect for commanders.
And what I said of the legion that took possession of Regium is in
line with the statement of the Jurisconsult 2 in Digest, XLIX. xvi. 3, 21,51
namely that if a legion revolts, it is customary to withdraw it from the
service; for it is revolt to oppose an officer or the general and not to
obey his commands. However, Accursius there understands and
explains far differently.
It is a serious offence also for a soldier to lose his arms in warfare, 52
and the penalty is death; so, too, if he transfers possession of them. b
But by clemency his punishment may be loss of rant.
Further, it makes a difference what arms he has disposed of. If it
be greaves or shoulder-piece, he is flogged; but if sword or [105] breast-
plate, or shield, or helmet, he is no better than a deserter. d But in all
these matters a new recruit is treated with less severity. 6
Again, a man who steals the arms of another is punished by loss of
rank.' And he who in warfare does not follow the orders of his general,
or goes counter to them, is punished with death, even though success
attends his efforts. g Such was the very sad fate of the younger Tor-
quatus, who fought with an enemy against his fathers orders and was
victorious, but paid the penalty with his life. From this incident
'Manlian orders' have become a precedent and a proverbial expression. 311
Franciscus Cremensis cites Digest, XLIX. xvi. 3, I5 1 as the sole
law in support of this principle, but adds the limitation: unless some 53
unsuspected reason appears, or some existing circumstance comes to
light that had been unknown to the general. He cites Digest, XVIL
i. 30, near the end, where it is shown that, by reason of an important
circumstance which develops, an order both of the law and of an
individual is set aside. According to his wont, Felinus discusses this
matter at length 4 on Decretals I. ii. i, j where he makes application to
many cases; so to another case on Decretals I. xxxiii. 9.*
I fear that the above limitation is not 5 valid; and we read of an
instance of contrary practice in Livy. 1 Quintus Fabius Rullianus 6 had
1 [For haec read fow, TR.] * [Modestinus. ED.
3 [Manlius being the family name of the Torquati. TR,] 4 [For lato read late. TR.
5 jflon has perhaps fallen out after *. TR.] 6 FFor Rutilianus read Rullianus. ED.
Chap. I] and Warfare 237
operated successfully against the Samnites; for he utterly defeated the
enemy, and this for no other reason than because, in the absence of the
Dictator Lucius Papirius, they had become rather lax and careless,
and, in fact, more arrogant which surely 1 was the development of a
new circumstance. Yet the dictator summoned his master of horse, 2
Fabius, for trial before him on the ground that, in fighting with the
enemy, he had engaged in battle contrary to orders ; and Fabius scarcely
escaped paying the penalty for breach of discipline.
On the side of Fabius, says Livy, a were arrayed the dignity of the [Viil. xxxiv.
Senate, the goodwill of the people, the support of the tribunes, and lff -l
the thought of his absent army; opposed were the invincible authority
of the Roman nation, the military code, the injunction of the dictator,
54 and the 'Manlian orders'. And a little farther along he adds : b '. . . when, b [yiii. xxxiv.
as a result of once breaking through the discipline, the soldier no longer 7 ff J
obeys the order of the centurion, 3 the centurion that of the tribune,
the tribune that of the legion commander, the legion commander that
of the consul, the master of horse that of the dictator, and when the
men range about without leave in friendly or hostile territory and the
scantily attended 4 standards are deserted, and, just as in brigandage,
blind chance takes the place of well-ordered service.'* So Livy. (Would
that our service to-day were not of this sort!)
At length it was reluctantly granted to Fabius that the Roman
people, by recourse to entreaty, should secure pardon for him not
that he should be acquitted of the offence, but, condemned therefor,
he should be excused as a favour to the Roman people. [!%, vm.
Moreover, Digest, XVII. i. 30 could apply only in a matter that S " 5 ' J
was not very serious or prejudical to the welfare of the state. Further,
the case against Fabius can be strengthened by appealing to Caesar,
who thus writes : d 'Many judge that if he' (the reference is to Sulla, 6 * CM War.
his lieutenant) c had chosen to follow up the enemy rather vigorously,
the war could have been brought to an end on that day. [IDS'] But I
do not think that his course is to be criticized; for', says Caesar, 'the
functions of a lieutenant and the commander-in-chief are not the
same. It is the business of the one to do everything according to orders;
the other should take measures freely for the general good.'
55 Once more, any insubordination of a soldier against his general
calls for the death penalty. 6 m
56 Soldiers are punished, but less severely, if they fall out of the line ;
for in this case they are flogged or reduced 7 in rank. (To-day this business
concerns the officer known as the sergeant-major, though he scarcely
1 [Assuming the reading utiqite for utrique. TR,] 3 [miUtum an error for tquitum. 1 Tn.J
3 [For Centwiones read centuritmis.Tb,] * [For infntpuria read infrequmtia. TR,]
5 [The quotation does not fonn a complete sentence. It is a fragment of the argument presented by
the dictator. TEJ
6 [For Sitta read Mk-Tfc.] 7 [For mutlant read fw&ro/.-T*.
238
A Treatise on Military Matters
[Part VIII
xvi. 4, 10,
VII [iv. 2].
d !V.[xxvi.i2.]
xvi, 6, i.
* Z% XLIX.
xvi. 13, 4.
s See Ibid.
h Part I, chap.
xi ? no, 9.
succeeds in making the men march in line, without ranging every-
where over the fields through by-ways and no-thoroughfares, looking
to see whether there is anything which they can plunder and steal from
the unhappy rustics belonging either to their own party or to the
enemy.)
Heavy punishment was meted out 1 also to men who refused to
enrol for service. Sometimes they were reduced to slavery, as being
traitors to the liberty of the state, a Sometimes those who did not appear
at roll-call were beaten and thrown into prison (so Livy),* and occasion-
ally they were even killed. 2 Of the consul Valerius, Livy says : c When
he had collared a few who appealed to a tribune, the rest were intimi-
dated and took the military oath.' 57
In fact the importance attached to the levy was such that in case
of emergency even those who claimed exemption from service were
administered the oath, and investigation of the claim of exemption was
postponed until after the war though it was a case of prejudicial
exception. Such we read in Livy 3 * was the procedure of the Dictator
Postumius.
A soldier is executed also, if he lays violent hands upon his superior, 58*
the crime being made more heinous by the rank of the officer. 6 In fact
even if the soldier resists an officer when he is beating 5 him, he is liable
to the same punishment. 1 But though resistance of any sort is a crime,
still it is customary to make distinction according to its character. 2
And, to touch on this matter in passing, a soldier is disciplined not
only by his tribune or centurion, but also by the captain, who ranks
below the other two. Of these captains frequent mention is made in
the laws, and in particular in the reference last cited, where, however,
the corrupt reading a principe is found. But the very force of the con-
text discredits this; for, as I have pointed out above, 11 the principes
('first-line men') were a class of privates. (Hence I infer that even
to-day it is permissible for an insubordinate common soldier to be
corrected 6 by an inferior officer, e.g. a sergeant, or a commander of ten,
who is known as a corporal.)
And let it not be counted strange that I have said: 'if he resists an
officer when he is beating him 3 ; for the soldiers were beaten with clubs
and also with the centurion's staff. And that was to them no more a 59
humiliation and disgrace than it would be for a lad, if the schoolmaster
1 [For animadnertebatiff read animadvertebatur. TR.]
2 [Compare also the punishment suffered by a father who had the thumbs of his sons cut off that
they might avoid enlistment, Suetonius, Augustus, XXIV, i ; and ste Digest, XLIX. xvi. 4, 12. TR.]
3 [Livy is not exactly reported here. By comparing III. Ixix. 7, it will be seen that he means to
say merely that many persons who thought they had a claim to exemption were induced to enroll by the
fear that, if they held aloof, their claim to exemption might be disallowed later in which case they
would be classed as deserters. TR.]
4 [The sectional numbering is confused at this point. For 54 read 58 ; the first 59 should be dis-
aided. TR.]
5 [For cedend read caedeiAl TR.] 6 [For coerere read coercere. TR.]
Chap. I]
and Warfare
239
should give him a flogging. I realize that this will appear childish and
silly to the braggart soldiers of our day. Yet the military laws [106] so
direct, though 1 the men of that age were not a whit inferior to our
soldiers in self-respect and courage. a
Hence we read m Tacitus* that the nickname 'Hand Me Another'
was given to a certain centurion much addicted to flogging, who, after
breaking 2 his staff on a soldier's back, would call for another.
60 Moreover, a soldier owes such deference to his officer that it is his
duty to expose himself to peril to shield him. And if he does not pro-
tect him when he can, he is on the same footing as the person who makes
the attack. ^Further, if the officer loses his life, the soldiers who failed
to protect him are condemned to death.*
61 However, if the onset was too fierce to be stemmed, the soldier
had a right to lookout for his own safety and life; 6 and in the light of
this provision we should perhaps interpret the feudal laws in their
bearing on a vassal who deserts his lord in battle (on this see the Feu-
dorum Libri, 1 though the doctors thereon do not recognize this distinc-
tion explicitly) for in cases where my aid cannot avail the lord, how
would my death or my capture help matters ? But a vassal should
beware of seizing upon an occasion as an excuse, because, in addition to
suffering the stigma of disgrace and infamy, he will besides have to face
as his judge either the lord himself, or at any rate his successor; and by
him he will be severely held to account.
62 From the above it follows also in like manner that the man who
in battle starts a retreat is deserving of death. So Digest, XLIX. xvi. 6,
3, where it is stated, further, that for the soldier mere laziness and
63 sloth are crimes. As a matter of fact, the remissness of a soldier might
6+ be so flagrant and so ill-timed that the death penalty would be deserved.
For suppose that a soldier, even of the rank and file, should avoid
service by feigning illness surely such a one would be on a par with
a deserter. So we read in Digest, XLIX. xvi. 6, 5.
I witnessed the bringing of this charge against a certain captain
of the imperial party, who, when marching by night to carry aid to a
garrison of his party which was being besieged by the enemy, sprained
his ankle (as he claimed), and did not make his way into the post. And
because at almost the very moment of the surrender of the garrison he
was observed to walk without difficulty, it was believed that he had
feigned illness; and there was not lacking some one to suggest to
the general that the man ought to be executed. And Angelus* com-
ments on the afore mentioned Digest XLIX. xvi. 6, 4 to this effect,
citing as an example Brunaldus of Bologna, who proceeded on this
principle.
xvi. 3, i and
16,
b [Annals, I.
xxiii. 4.]
xvi. 6, 8.
xvi. 3, 22
WfrXII
xvi. 6, 8.
'II.XXIT,
chap,i,2;
I. v, chap, i; I.
xxi,i,el.2. 3
tOnDig.
XLVII.iv.i,
1 [For am read cwn* ED.]
3 [Correcting the false reference of the text. TR.]
2 [For/flrfa read/rflrffl. Tn.]
*. T*j
4 [Reading non tanium for non aut&n-
240 A Treatise on Military Matters [Part VIII
The conduct of the above captain reminds me to mention a some-
what similar incident. A certain garrison commander actually did not
have a force of soldiers sufficient to hold out against the enemy; in
addition, a great throng of townspeople came to him declaring that if he
did not take action himself, they would themselves look out for their
safety and that of the city, and that they would not suffer it to be
pillaged, Constrained by these difficulties, he surrendered the city; but [65]
later this was charged against him as treachery and neglect of duty, [106']
and he was acquitted only at heavy expense and with great difficulty.
[Livy,xxiv A rather similar situation developed at Henna, 41 a city of Sicily,
XXXV1L where Lucius Pinarius was in command with a Roman garrison ; but the
townspeople were in sympathy with the Carthaginians, and they there-
fore begged the commander that he would trust to them the keys of
the gates and even the citadel, so that it might appear that they were
on the side of the Romans by choice, rather than by compulsion. The
commander declined, on the ground that it was a capital offence among
the Romans either to surrender keys, or to withdraw from garrison duty.
As the people were insistent and prepared to use force, he 2 put
the matter ofi until the following day. In the interim he summoned
his soldiers and advised them what must be done, and what his wishes
were. On the next day, when the same demands were made regarding
the citadel and the keys, the commander declined on the same grounds
as before; and as threats were now being brought to bear, he gave
the signal to the soldiers according to previous arrangement, and the
townspeople were butchered, unarmed and unprepared, by the fore-
warned and armed soldiery. Thus possession of the city was main-
tained by a deed that was either evil or necessary.
But in the case previously mentioned it would not have been very
safe or wise to proceed thus ; for the strength of the garrison was inferior,
and the enemy was stationed 3 immediately outside the walls. There-
fore, I too think that the commander deserved acquittal which was
ordered by decision of the Emperor himself.
Commanders, therefore, should be wary of capitulations of this sort,
which involve peril to reputation and to life; and they should prefer
death to an action that is doubtful and possibly even disgraceful. For 66
that man is open to the charge and penalty of the Julian Law on
Treason who has failed 4 to hold a citadel, or who has abandoned his
camp to the enemy, as is stated in Digest, XL VIII. iv. 3, at the
beginning. But I think that this should be restricted to cases of evil
intent or manifest negligence.5
There are also several other points in the Julian Law that bear on 67
1 [Reading Htnnae for Etnt . ED.] * [For ip% read ifw. Tn.]
3 [starent should be read for starst, or Jiostes should be singular. ED .]
4 [See the text of the Digest reference following. TR.] * [For signitie read segnitie. Tx.]
Chap. I]
and Warfare
<j
241
our subject. For a man offends against this law if, on his own responsi-
bility and without the Emperor's orders, he has held a levy, organized
an army, or waged war. a (But by 'army' understand, not many soldiers,
but many divisions, i.e. regiments, or companies, as they are commonly
called.)*
68 ^ In another version, that same law 1 reads: 'or has held a citadel 5 .
This has reference to persons who strengthen, fortify, and hold
citadels or castles without the warrant of the general and on their own
responsibility, as was done in one of the late wars by the Spaniard
Salcedus in the case of the citadel at Cortemiglia.
The penalty of this same law falls upon the man who does not
receive his successor and turn over the province to him, as was true of
Antonio de Leyva during the late wars, when the Emperor sent the Duke
of Brandenburg and Brunswick 2 with a German army to succeed him.
But though he did not receive the Duke, it did not work him any injury.
Possibly, however, private dispatches had countermanded the order.
The same holds true also of the man who has led an army into an
ambush, and who has injected new life into the enemy with supplies,
arms, horses, money, or anything else. For not even to the ambas-
sadors of the enemy is it permissible to sell arms, c [107] nor yet the
materials 3 out of which arms might be manufactured/
So of the man who attempts to kill an imperial official holding an
independent command; 6 or who has estranged a friendly king; or who
has frustrated getting control of the enemy; or who has turned friends
into enemies; or who has sent to the enemy a messenger, or a letter, or
has betrayed the watchword but with evil intent' (whence Bartolus de-
clared that the bearers also of treasonable letters are guilty of this crime,
according to Digest, XLVIII. iv. I, near the end, where Alexander* 1
comments ; and this was the view of Baldus h also) ; so he who has stirred
up a military revolt against the Emperor; 1 and he by whose plotting
and treachery a state or province has been betrayed to the enemy.*
The other points under this law do not in general concern our
present subject, except for the case of a man by whose help or com-
pliance the enemy have carried off plunder from friendly territory.
Such a person is burned alive.*
It is also a capital offence for a soldier to enter a fortified post over
69 the entrenchments; but if he crosses the moat only, the penalty is
lighter. 1 This worked woe even for Remus, 4 founder of the city. m
Again, it was a capital offence to strike with the sword a comrade-
70 in-arms. n I fancy that this rather severe enactment was made with a
1 [i.e. Digest, XLVIII. iv. 3, TR.]
2 [Since Belli has avoided the Latin names here, read Braunschweig for Brctnsnuk. ED.]
3 [For materia read matenam. TR.]
4 [Referring to the tradition that Romulus slew Remus for leaping in derision over the (sacred)
walls of the city. The incident is not mentioned in the Digest reference here cited, ED.]
1569.64 i i
a Same law.
c Code, TV. xli.
2.
* Ibid.
*Dig. XLVIII.
iv. i and 4,
addit. on Dig.
XLVIII. xvi.
H. i. 95
words extra
qwero.
iv. i, at end.
)Dig. XLVIII.
iv. io.
* Cafe, XII.
xxxv. 9.
i Dig. XLIX.
xvi. 3, 1 17, 18.
m Dig, L viii.
xvi. 6, 6.
242
A Treatise on Military Matters
[Part VIII
xvi. 6, 7, at
the end.
XXXVII. 3
g. XLVIIL
xxii.7,22.
i^g.XLIX.
xvi. 3 (oft
cited $i.
view to forestalling riot among the soldiers, which easily develops when
every one is rushing up to the defence of his friends. However, the
penalty was milder, if the act was inspired by wine or wantonness 1 (which 71
palliates the very frequent broils of the Germans and the Swiss
though in fact they judge of crimes according to usage and standards
of their own, not according to Roman law).
Further, it is a capital offence for a slave to venture to have him-
self enrolled in the service.*
So also for a soldier in confinement, who has made his escape by 72
breaking through his prison; but not if he gets away by his wit, let us
say through a window or an open door, 1 nor in that case will he be classed
as a deserter; for it is the prison, and not the service, that he deserts, as
is stated in Digest, XLIX. xvi. 13, 5. But Digest, XLVIIL xix, 38, 1 1
says that if he forces his way out with a sword that has been given him,
this, too, will be a capital offence.
Again, a soldier who disturbs the peace is punished with death.
If a soldier set to guard a prison allows a soldier to escape, he is 73
liable to the same punishment as the man who escaped. 21 But Digest)
XLVIIL iii. 12, more broadly and liberally makes distinction according
as the prisoner escaped as the result of culpable carelessness on the
part of the custodian, and according as he escaped alone, or in the
company of many.
[107'] In a soldier, unfilial conduct towards parents also is a crime 74
even in the matter of words, e.g. if he assails them with abuse and revil-
ing, or calls his mother an evildoer. For in such a case he is excluded
from the service. 6
Finally, a soldier who leaves his post even to inspect his estates 75
is punished severely/ (But in these cases above mentioned, and in all
others where there is question of punishment, it is always proper to
take into consideration whether a person did wrong by design 3 or by
accident 6 so that the full penalty or a lighter punishment may be
imposed.)
For other crimes, the penalties are in general as follows: corporal 76
punishment, money fine, debarment from civic functions (such, I
suppose, as confer honour; 11 but not from others, unless you would
have punishment merge into a favour 1 ); so also transfer to another
branch of the service, loss of rating, and dishonourable discharge. 1
But the further crimes of soldiers and the variety of punish-
ments (both for the misdeeds above mentioned and for others, and
specifically for individuals and in general for everybody) I find it 77
impossible to treat ; for they are subject to the discretion of the Emperor
himself, and sometimes to custom taking into account the character
1 [For hoslio read ostio. TR,]
3 [For consult ne read constdtone. TR.]
1 [See the Digest reference. TR,]
Chap. I] and Warfare 243
of the deed and the occasion, the rashness of the offender, the pre-
cedent, the outcome, and other details which it would be difficult to
look into.
78 His entire army was punished by the consul Appius for disgraceful
retreat. The standard-bearers who had lost their colours and the
centurions and double-ration men who had deserted their companies
he caused to be flogged and beheaded. The rest of the command was
segregated by lot, 1 and every tenth man was executed very stern
measures indeed for the punishment of retreat, even though executed
with deliberate purpose, as was then the case. So Livy, a who also npix.ioff.].
records b that at another place cohorts which had lost their colours were * x pv. 4.].
left outside the camp, without tents, and all but at the mercy of the
enemy.
Most considerate of all was the procedure of Gracchus. 6 Whenfour * [Livy] xxiv
thousand slave volunteers had fought half-heartedly and failed to break t XVp 6 ^
into the enemy's camp along with the other victorious troops, in fear
of punishment they occupied a hill 3 near the camp. These he summoned
79 and read them a lecture on having shirked battle and withdrawn.
Then he caused them to take oath that they would not eat or drink in
any other posture than standing up as long as they were in the service,
unless prevented by illness. (These are the volunteers whom I have
above referred to, namely the slaves purchased and inducted into the
service after the battle of Cannae.)
On the other hand, in the case of those soldiers who surrendered
(as I mentioned above) and did not venture to follow their comrades
in a night escape, and whom it was voted not to ransom at public
expense/ the Senate wrote in very scathing terms to the proconsul d [Livy, xxv.
Marcellus that they were no longer to be trusted in the service of the
state. If he thought otherwise, he might act accordingly, provided
that no one of those men was relieved of burdens, nor 3 presented with
a soldier's reward [108] even for valour, and that they be not brought
back into Italy (whence they had been banished) so long as the enemy
had a footing there.
This same Marcus Marcellus took milder action in the case of the
cohorts that had lost their colours when he was engaged in battle with
Hannibal, ordering that barley be issued as their ration, instead of
wheat. The centurions of the maniples that had lost their colours he
left shorn of belt and scabbard,* and exacted no further punishment*
On the other hand an ancient performance, and uncommon in "
those days (to quote the words of Tacitus) Lucius Apronius, com-
mander in Africa against the renegade Tacfarinas, ordered death by
The impossible structure of the Latin sentence is due to synesis in the text quoted, TR.]
For colon read coUem. TR.]
'For ne m read . ED.]
The text of Livy reads: destridis gladiis disanctos* TR.]
m 3
244
A Treatise on Military Matters
[Part VIII
a [Tacitus,
Anmls t lll.
xxi. i.l
* [Annals^!.
xviii.]
* [Annals,
XIII. xxxv.
laris Instituta,
III.X.
clubbing for every tenth man selected by lot from the cohort which in
battle had started a retreat. 1
And we read in Tacitus, again, that when the general Corbulo 80
desired to raise the lax morale of the legions in Germany to the old-
time standard, he issued orders that no one should straggle from the
column, or fight without orders, and that they should serve as pickets
and in the watch 1 and in all other duties of day or night fully
armed. And he punished disobedience so severely that he executed one
man because he was digging earth for a rampart in undress, and
another because he was armed with a dagger only, and lacked his
sword. 'The soldiers realized', says Tacitus, 'that he would be inexor-
able with regard to serious faults, inasmuch as he was so severe in respect
to the trivial.'*
And again, when Corbulo was in Armenia, waging war against the
Parthians 2 for Tiberius (or possibly for Nero 3 ), he recalled to strenuous
activity the Roman soldiers, among whom not even the veterans had
done 4 service as pickets or on the watch, and many of them had never set
eyes on a rampart or moat, but in sleek idleness 5 had run to seed in the
towns, without helm 6 or corslet. In the roughest weather he kept
the whole army in tents, 7 where the limbs of many were frosted by the
severe cold, some died on guard duty, and there is even on record a
soldier carrying a bundle of sticks, whose hands froze so hard that they
fell off, leaving but stumps of arms. Meanwhile the commander him-
self, in light clothing and with bare 8 head, at work and on the march
set an example for all. A check upon those who tried to escape these
hardships by desertion was found by this commander in severity; for
a man who deserted his colours at once paid the penalty with his life.
It was demonstrated', says Tacitus, 'that such severity is much more 81
salutary than mercy; for fewer deserted from that camp than from
other camps where clemency was the order of the day. 50
(In our times the same extreme of cold was suffered by the army
of Charles, while besieging the city of Metz; and a large part of his
force perished under stress of the winter weather. And what I have
said of severity of discipline is reinforced by the following words of
Vegetius : d 'The commander should maintain absolute control through
severity; 9 the faults of the soldier he should punish by fixed rules; and
he should have the reputation of sparing no culprit.')
But, to come back to Corbulo, he reprimanded all the officers and
soldiers who had given way before the enemy in battle, and ordered
that they find quarters outside the rampart; and after keeping them in
1 [For viglias read vigilias.* TR.]
3 [This was the fact. TR.]
5 [odo, i.e. otio. TR.]
7 \pclibus, i.e. peMus . Tn.]
9 [The citation is based on a doubtful text. TR.]
2 [For partis read Parlkis. TR/
4 [Tacitus uses the pluperfect tense. TR. :
6 [galleis, i.e. galeisTn!
8 [For in tedo read intecto.
Chap. I] and Warfare 245
this state for a long time, it was only with reluctance that he pardoned
them at the entreaty of the whole army. 1
82 And Pescennius [108'] Niger (as related in his biograph) rb by
Flavins Vopiscus) 1 condemned to death ten soldiers who had stolen a
barn-yard fowl; and scarcely was their pardon secured by the entire
army though on the point of open mutiny. It was ordered, however,
that each man should pay a fowl to the owner, and that during the
whole campaign no one of them should kindle a fire or eat food
freshly cooked; and spies even were appointed to keep them under
surveillance.
83 Indeed the rigour of this Pescennius is said to have been so
extreme that on a campaign he forbade the soldiers to drink sweet wine,
and to content themselves with the sour j and he was unwilling to have
bakers follow the camp, ordering the men to subsist on soldiers' bread
which to-day is called biscuit. Again, when in Egypt the soldiers were
complaining that they had no wine, he cried: 'Here is the Nile; and
do you call for wine ? >c
Vopiscus records, 2 further, that Avidius Cassius issued orders that
on a campaign the men should carry nothing but lard, soldiers' biscuit,
and sour wine. d And lest you suppose that these are mere fictions
regarding soldiers' biscuit, it is mentioned in very many laws of the
Code, especially in XII. xxxvii. I and XII. xxxviii. 2, and in numerous
other places. (Would that these standards were enforced in these days !
For a far smaller throng of sutlers and other useless folk would then
follow the camps.)
And although I am aware that many of the penalties above
described will seem trifling and foolish to generals of our time, if this
work of mine (whatever its merit) should ever fall into their binds, I
would yet have them bear in mind one thing, namely that all men, and
84 especially soldiers, are prone to wrongdoing, and that ready pardon is
85 an encouragement to sin and crime; and 3 in fine they should ponder
that experience of Corbulo that the soldiers under him feared* to
commit grave wrongs,- knowing him to be inflexible in regard to
trifling offences,
86 Furthermore, in army life there should be the least possible wrong-
doing, because there the tiniest spark may start a great conflagration.
In regard to this matter of punishments, no other more definite
87 principles can be laid down, sbce in the case of the Emperor all punish-
ments are discretionary, as Baldus stated on the basis of Code, I. i, l c ;
for the Emperor's judgement is based on divine inspiration, according
to the statement there. 5 Hence, men who serve under the Emperors
]This Life is now ascribed to Spartianus. TR.]
The life of Avidius Cassius is now ascribed to Gallicanus. TR.]
For Ad perhaps At should be read. TR,] 4 [For pertimtissc read pertimuisse.-
'See the Code reference. TR.]
a [Tacitus,
Annals, XIII.
xxxvi. 4 Jt.1
b chap. x.
: [chap, vii.]
d Avidius Cas-
sius, chap. v.
e col. 6, last
oppo.
-TR.]
246
A Treatise on Military Matters
[Part VIII
* On Code VI.
i. 1, col. 4, the
words sed
quaero qui
dicantur
caporales.
c Last words.
xix. 14.
Dzg.XLVIII.
v.i 2, at the
Omnium
Offiaalium,
tit. de txces*
ml
should be wary of committing acts that call for punishment, since they
cannot know of what nature this will be.
One point, however, I think should not be omitted for it is not 88
unrelated to punishments namely that, if a tribune, centurion, or any
other officer whatsoever has inflicted loss unlawfully in company with
the men of his command, he is liable for the action of all. So Baldus
held; a and the view of Martinus Laudensis was the same. 1 *
In fact, if forced to make payment, he cannot claim any reim-
bursement from the men of his command and his comrades-in-arms
(Digest, II. x. I, 4, where Angelus comments, following Bartolus);
[109] just as in the supposed, case the soldiers cannot bring action
against him either, supposing that they suffered any loss in the enter-
prise in question. So Bartolus on Code, IX. xii. 6, c where he warns that
this should never be forgotten.
It is also a serious matter for a soldier if he performs as an actor, or
allows himself to be made a slave; but understand this of real slavery,
and not of the status of a servant. 3
Further, it is among the punishments (as ordered in Digest^ III. 89
ii. 2, 2, and Code, XII. xxxv. 3) that a man dishonourably discharged
may not live either in Rome or in any other city where the Emperor is.
Finally, a soldier is punished if he is careless of his honour; for if
he makes settlement on a money basis with the seducer 1 of his own wife,
he is dropped from the roll and exiled. 6
And do not suppose that punishment is to be feared only by the
common soldier; for it is in store even for the commanding general
himself, if he has done any wrong. Thus, such a one is ordered to be
sent back under guard with his agents into a province which he has
robbed, and he is directed to make good his stealings fourfold; 1 but this
is a dead letter to-day.
Likewise, an officer is punished if he misrepresents the number of 90
soldiers and embezzles the pay,* as I have already pointed out in a
previous passage.
Some other matters concerning the crimes and failings of soldiers
are treated by Paris de Puteo, h whom you may consult at your leisure.
1 [mecho, i.e.
HERE BEGINS
THE NINTH PART OF THE WORK
SOLE CHAPTER
ON SAFE-CONDUCTS
SYNOPSIS
1 Safe-conduct. Why so called.
2 Whose business it is to grant safe-con-
ducts; and a general distinction.
3 The lord of a castle, a praetor, or a
governor may grant safe-conducts, but
within their own boundaries.
4 By whom leave of absence may be
granted to a soldier.
5 The commanding general himself is for-
bidden under some circumstances to
grant leave of absence to a soldier.
5 Not even the commander may grant
leave of absence to soldiers on the
frontier,
6 Soldiers beyond the number of thirty
may not be absent from camp on
leave.
7 A safe-conduct issued notwithstanding
crime and conviction, and other dis-
honourable circumstances, covers un-
detected crime also.
8 A man who secures a safe-conduct
should weigh well its terms, and take
proper measures for his own safety.
See also number II, 1 at the end.
9 A safe-conduct is an unreliable security.
10 Whether a judge may issue a safe-con-
duct.
11 A safe-conduct kept secret does not pre-
clude the lawful tilling of a banished
person, provided that such killing is
allowed by statute. See also Part X,
chap, ii, number 36.*
12 A safe-conduct granted for the purpose
of hauling timber covers also survey
and search for the same.
13 A safe-conduct granted to a husband
and his possessions may be used by the
wife travelling with the husband's
possessions, even though not in his com-
pany.
14 A safe-conduct granted for a journey
from Pisa to Parma includes also the
territory of Pisa, supposing it to be
hostile.
15 A safe-conduct granted to Peter and his
partners does not guarantee against
their taking legal action against one
another, and prosecuting one another,
in spite of it.
1 6 The wording of a safe-conduct should
be strictly interpreted.
17 Only the Emperor grants a safe-conduct.
1 8 Whether the preposition 'from* (a, ab)
is to be understood as including the
terminus or as excluding it.
19 [110] A safe-conduct granted for a
journey from Turin to Rome does not
include the terminus a quo.
20 The wording is interpreted by the per-
son issuing the safe-conduct.
21 A safe-conduct granted for going some-
where is not always regarded as given
for the return journey but with a dis-
tinction, for which see the digression
here.
22 A safe-conduct for Titius and four
associates includes a Jewish partner,
23 Who are called associates in the matter
of safe-conducts.
24 Whether a safe-conduct lapses with its
first use. Distinguish as here indicated.
25 When protection granted subject to the
good pleasure of the giver lapses.
26 In case it has been forbidden to tran-
sport any Knd of arms to the enemy,
is it allowable to deliver sword-sheaths ?
27 In regard to punishable actions, we hold
to a strict interpretation of terms.
28 A penalty attached to marriage does not
apply also to engagement.
29 A safe-conduct automatically includes
the retinue needed by the recipient.
30 Whether a safe-conduct issued during a
truce extends into the time of a war
that breab out in the interim.
[For 10 read n. TR.]
1569-64
2 [For 35 read 36. TR.]
249
2 5
A Treatise on Military Matters
[Part IX
31 Whether a judge may issue a safe-con-
duct to a criminal.
32 A safe-conduct does not protect one
who commits a fresh offence.
33 A person who fears injury may lawfully
pray a judge to compel an enemy to
give a pledge that he will keep the
peace.
34 To a person who fears injury a judge
may give permission to be escorted by
friends and associates.
35 A safe-conduct may be given to a debtor
by his creditors.
36 A majority of the creditors may grant
the debtor such security, though the
others object.
37 'Majority' has reference to the amount
owed, not to the number of creditors. 1
38 It is for the debtor to decide whether
he shall surrender his estate or enjoy a
five-year respite. 2
39 After the lapse of five years the debtor
is dealt with in summary fashion
even to the point of imprisonment.
40 Surrender of one's estate is an unhappy
recourse.
41 Whether a statute is valid that 3 couples
disgrace with surrender of estate.
42 Whether a person surrendering his
estate may change his mind, i.e. re-
cover his goods and settle his accounts.
43 A person surrendering his estate must
admit and acknowledge his debt and
have sentence passed upon him.
44 If a person who has surrendered his
estate comes into property, he is under
obligation to pay in full out in so far
as he can, not more.
45 Maintenance should be provided from
the income of estates, and not from
alienation of the property.
46 How 'amount' and 'kind* are to be
understood.
47 A person who suffers loss of standing
with the surrender of his estate has his
account thereby entirely cleared.
i 48 Any one at all may surrender his estate.
j This applies even to an association.
i 49 A person who is solvent may surrender
his estate.
50 What classes of persons there are who
enjoy the privilege of not being forced
to pay except to the extent of their
ability.
51 [110'] A person under a civic burden is
liable to the extent of his ability.
52 How we should interpret the words 're-
serving enough to keep him from want'.
53 If pros and cons balance, then there
should be collection in full without
regard for privilege, because preference
is given 4 the party who is trying to
escape loss.
54 According to Roman law at one time,
debtors were given over to their
creditors in chains 5 or bound.
55 Whether surrender of estate may be
refused 6 by a debtor.
56 One who refuses surrender of estate is
liable in full, and without the pro-
vision 'reserving enough to keep him
from want'.
57 Surrender of estate is not allowed in the
case of a person fined for crime, even
though it be a question of money.
58 When surrender of estate is made, all
the creditors should be notified.
59 A general safe-conduct does not cover
crimes ;
60 Nor debts owed to the fiscus;
6 1 Nor, if granted to a thief, does it protect
him, in case he offends anew.
62 A man who enjoys the five-year respite 7
ought to give a pledge to pay at that
future date.
63 A safe-conduct does not cover a debt
secured by oath.
64 The man who grants a safe-conduct is
bound to make good any loss that is
inflicted upon the holder because of the
grantor, or because of intent to injure
the latter.
IT is customary during the progress of wars to issue documents i
which they call safe-conducts, the name being derived from the fact
1 [For creditor^ read creditorum, TR.]
3 [For quod probably quo should read. TR.]
* [For prafertur read #fw/ijfftir.--TR.]
* [renuncutri, i.e. renuntiari. TR.]
2 [inductas, i.e. indutias.
* [For nexu read i. TR.]
7 [Inducias, i.e. Indutias. TR.]
Chap. I]
and Warfare
251
itself, namely that they protect the bearers, and usually take them to
their destination and back again in safety. Therefore, this is a subject
that deserves our attention.
2 First, then, I ask: Who has the right to issue such a permit ? And
I think that a distinction should be recognized; for these documents 1
and safe-conducts are issued either to one's own people, or to some one
of the enemy; and, again, to one's own people either to visit hostile
territory, or to journey through one's own country.
For use within his own boundaries, safe-conducts will be issued
3 to his own people by the officer who has local 2 jurisdiction, e.g. a pro-
vincial 3 prefect, the lord of a castle, the praetor of a city, a president or
governor of a province. But these safe-conducts will not hold outside
the territory of the grantor, for beyond it his orders are disregarded
with impunity.* Nevertheless, it is superfluous to petition for what
has been granted 5 by the common 6 law except 7 in the case of a
suspected person, who has been forbidden to leave the city.
4 Again, leave of absence can be granted a soldier only by a tribune,
a military chief, a prefect [111] of the camp, or even at times only by
the general himself.* In fact not even heat times may grant it. For if
a great horde of invading barbarians threatens, or if the time of a
campaign is not far distant, not even the general may grant leave ; and he
forfeits his life, if he does. So Code, XII. xlii. I, where Placentinus says
that this law was intended to apply even to the supreme army head.
5 And a general may not give leave either to soldiers on the frontier
(i.e. those who are guarding frontiers and boundaries) under pain of
loss of rank.
And even when 8 everything seems secure, generals and prefects will
6 not give leaves of absence to soldiers indiscriminately, nor to more than
thirty men. For the Emperor held that when thirty men were absent,
this was enough to be away from the colours.* 1
If leave was granted to a greater number, the pay of the excess men
was absorbed by the fiscus, and the officer responsible for their leave
was ordered to reimburse the men out of his own funds, in addition to
loss of the belt, as mentioned above. 6 (Yet everybody is aware how
these regulations are superseded at the present time, and how scouted
and even derided they are.) But up to the number above specified, the
pay continued; and if it chanced to be delivered in the interim, it was
kept, until the return of those absentees, in the custody of the officers'
corps (which, as I have explained, is a military division 1 ).
But, to come back to the beaten track, at times it is a question of
giving leave to enemies to come and go at liberty; and this the com-
dispbmata, i.e. diplomata. TR.]
For Provincial! read prmnfiaUs. TR.]
Read conccssum for concessus. TR.J
Read nisi for elisi Tn.}
[For Mum perhaps illos should be read. TR.]
4 f For/, read C.Ea]
6 [Reading communi for erimini,* TR.]
8 [For eum read cum. Taj
* Code* III.
xiii. 7, with
text.
*> Dig. XLIX.
xvi. 12.
2, 8 and 9.
xxxvii. 1 6, 2.
"SeeOxfc,
XII. xxxvii.
16, 3 and 7.
XII. xxxvii.
16,
2 5 2
A Treatise on Military Matters
[Part IX
mander-in-chief alone can do, to judge from Digest, XL VIII. xix. 4, at
the end. And I think the same is true when it is a question of granting safe*
conducts to provincials > or to our own people, to enter hostile territory, or
to the other party to enter ourswhich even in time of peace and truce 1 is
forbidden in Code, IV. briii. 4, where a sufficient reason is assigned, namely
that people may not pry into 2 the secrets of another's realm.
(Even in the full tide of war, however, I have known commanders
of garrisons to grant safe-conducts with open hand to provincials
(both to their own and to others), allowing them to travel about and
transport merchandise a proceeding which put a pretty penny in the
pockets of the commanders themselves. And though they were well
aware that these permits were carried outside the territory committed
to them, they nevertheless therein requested other commanders not to
allow them to be dishonoured. And the latter were obliging and not
without good reason; for, as the proverb has it, 'hand washes hand 3 .
And would that the commanding generals themselves had not reaped
great profit from this sort of thing! For, under a 'blanket' permit in
regard to which they had made a mutual agreement, they would
allow traders freely to visit places held by the enemy, carrying about
wares of almost any sort. And they designated officers to introduce
them to the other party, these officers being scarcely more trustworthy
than the very people they were introducing.)
No one, then, will give a safe-conduct to an enemy, nor to go
into the enemy's country, unless it be the commander-in-chief. Thus
Bartolus states, with general approval, on Digest II. xiv. 5 and IV. in.
*ittd.inaddit. i, 3; [111'] so Alexander also. 4
Connected with this subject there are not a few problems and
doubtful points. Baldus b raises the following question: The Duke of 7
Milan gave a safe-conduct to a certain Nicodemus in these terms: We
grant safe-conduct to Nicodemus to come to us from any direction and
to pass across our territory, and to return in security, despite certain
things done by him in the past against us and 3 to the detriment of our
position and honour, and despite conviction and an order issued because
of homicide, or despite other sentence of any kind pronounced for
crime of any sort whatsoever.'
Now this Nicodemus had committed certain thefts that had never
been discovered. This circumstance does not seem to be covered in the
safe-conduct. For its first provision grants protection as touching acts
inimical to the standing and honour of the prince; and thefts do not
appear to come under this head. And still less do they fall under the
second head; for that has to do with crimes on which judgement had
already been passed.
1, 490, begin
ning: Ponitur
quod quidam
Nicodemus.
1 [indudarum, i.e. ittdtttiarum. Tfi.l
3 [For est read et. TR.]
2 [For scrutentnr read scruteniur .ED.]
Chap. I] and Warfare 253
Baldus takes the other view; first, because crimes of any sort are
an affront to the honour of a prince; and, second, because a man who is
secure as regards crimes of any sort whatsoever on which judgement has
been passed, ought much more to be safe as regards lighter offences for
which judgement has not yet been pronounced against him.
8 However, recipients of safe-conducts should be wary, and weigh
carefully the words of these documents. For it often happens that the
person who slips on a syllable loses everything ; and it is true that disputes
frequently arise about them, with discussion as to the meaning of the
terms.
Also at times there are judges who have an eye to profit, and
to the claims of friendship, and even to ambition. And if they think
they are pleasing a lord, they stretch the laws as the shoemakers spread
9 their leather. (No wonder, then, that it is said that a safe-conduct is a
frail reliance, and that no person is obliged to accept one and trust
himself to it! a ) As being treacherous and deceitful, there is on record
the answer of a certain prominent man, who decided to put out of the
way a rebel against himself, whom he had lured to him with large
promises and assurances; for when the pledge he had ^ given was
appealed to, he replied: 'It was no easy matter even by this means to
bring the fellow hither.'
And as the discussion has taken this turn, it will not be out of
10 place to consider also some points on giving a safe-conduct to criminals
and law-breakers, or to exiles or banished persons, as we call them. So
l * A. 1 1)
I raise the question whether a judge may issue such a permit. A gloss
sums up in a word, saying: He will neither issue one, nor honour it
if issued'. Jacobus de Belviso and Jacobus of Ravenna follow this
gloss ; but Bartolus follows Petms Bellapertica, who said that the judge
is wrong in issuing [112] such a permit, but nevertheless he will stand
by his given word.
Others distinguish between a judge who has jurisdiction in his
own right, and one who has delegated jurisdiction; for a man has freer
scope in a field that is his own. So Felinus. 4
Saliceto 6 declared that, in view of Digest, XLVIII. xix. 4, no magis-
trate will grant a safe-conduct touching a crime on which judgement
has already been passed.
Nay more: on Digest XLVIIL i. $\ where, following Bartolus,
he fully treats of this question, he makes the following distinctions:
(l) a safe-conduct is given to an enemy with authorization of the law,
and then the grantor should make it good; or (2) it is granted without
authorization of the law, and then either the grantor revokes it as a
punishment, and for the public good (therein doing well), or he revokes
it out of caprice (therein doing ill).
1 [The reference as given by Belli is incomplete. TR],
See Decretals,
II. vi. 4, el. 2,
and Dg&eials,
II. xui. 8, with
comment.
XVII, chap,
vii.
Ibid.
d On Decretals
II. vi. 4.
e On Cods DC
li. 10.
A Treatise on Military Matters
[Part IX
/foW. 5 last col.
but one.
b Consilia t
He I. 4*3,
beginning:
Quia scio,
col, 7.
c Consilium 52,
Or, says he, the safe-conduct is issued to a subject; and dis-
tinguish then as in the previous case, i.e. according as the law sanctions,
or the reverse. Or it is granted to a non-subject (other than an enemy),
and then either :
(1) The promise is regular both from the point of view of moral
obligation and the method of making the agreement, and then it should
be kept (for it is a serious matter to break one's word). And the same
will be true if the promise is binding, though not regular (e.g. if a
promise has really been made but there is no writing to show for it,
or it has been improperly drawn up); for such promises ought to be
kept. Or, on the other hand,
(2) The promise has a claim to validity, but it was a bare state-
ment; and then by the letter of the law the grantor is not obliged to
fulfil it; but the standard of the canon law is different. So Imolensis.
Bartolus* claims that if a person who is exiled for one crime is
charged with another in regard to which he desires to clear himself, a
judge may grant such a one a safe-conduct, and that he ought to
honour it. But it is my view that the man will not thus be secured
against the crime of which he comes to clear his name ; and hence, if the
nature of the case calls for it, he may be put to torture, or even con-
demned and made to pay the penalty; for there is no exception to a rule.
Again, in the references above cited, Saliceto and Imolensis say
that a safe-conduct should not be given in the case of crime committed
within the district ; but if it is committed outside 1 (and, therefore, in a
safe place), a promise made to the criminal should be kept. These in
general are the words and views of the Doctors on this subject.
But Paolo di Castro 1 * says that any judge for legitimate cause may
issue a safe-conduct; and that, in the case of the Emperor, his own
inclination is sufficient ground; in fact, a person who did not honour
a safe-conduct issued by the Emperor would be guilty of treason. So he
here claims ; and this view is supported by Digest, XLVIIL iv. I, with
comment by Bartolus, who states also that when a safe-conduct has been
granted by one who has the right to do so, it ought to be respected,
even though a mistake was made in issuing it.
Again, Joannes of Imola c declared that men chosen to maintain a
good and quiet condition of the state have not the right to issue a safe-
conduct, if it concerns a matter of private gain.
If I may venture to intrude myself into the company of so many
august men, it is my view that it is the part of a careful and circumspect
judge to consider well the limitations of his powers so as not to
attempt anything beyond them, and, if he has promised anything, that
he may fulfil it. For it is not seemly [112'] that his promise should
mislead any one.
1 [For eum read id. TK.]
Chap. I]
and Warfare
255
ii
Moreover, the applicants should also take care whom they trust;
and, since a very important interest of theirs is in question, they
should scrutinize diligently both the wording of the document and the
powers of the grantor, so that there be no regret when it is too late.
It was stated by Nellus* and Paolo di Castro* (as reported and fol-
lowed in each case by Gozadinus } that if a banished person secured a
safe-conduct that was not made public, and it was permissible in con-
formity with the statutes to kill a banished person, the slaying of such
a one would not bring the slayer within the scope of the Cornelian
Law, and that he will be exonerated.
There arise not a few doubtful points regarding military safe-
conducts also, for example, in the following case described by Joannes
12 of Imola: d A safe-conduct was issued by some military commander to a
certain Joannes Magnus to take four horses, two wagons, with two
drivers and four servants, to get wood, hay, 1 and stubble in the territory
of Imola. Some servants and drivers of this Joannes were found in the
district mentioned, along with many other supernumerary persons,
with only one horse, and without any wagon; and all were taken into
custody.
Joannes of Imola held that servants and drivers were protected and
covered by the pledge given, although many other people were in
their company, and although they were not engaged in hauling wood
and the other things allowed. For they claimed that they had gone to
find out where these were to be had. Consequently, if the right of
transportation is granted to a person, so also are its necessary pre-
liminaries, i.e. the right of search and investigation.
13 Baldus 6 stated also that a safe-conduct was granted to a certain
Marcus to journey to the city of Asti with ten horses, with arms, goods,
equipment, and retainers; and that it was permissible for the said
Marcus to send his wife in place of himself, and that in this case the
arms, horses, and other things above named 2 were just as much pro-
tected as if he himself had gone. And since the main discussion was with
reference to the things, and not to the person of the wife, and since the
things at any rate were specifically covered by the document, this case
was simpler.
(But the same thing could be said, too, of the person of the wife,
in view of the oneness existing between those who are married, inas-
much as they are one flesh. There would be more room for doubt, if
the woman were also a rebel and an enemy. But this case I do not
pursue further.)
14 Angelus* discusses the following question: At a time of war
between the people of Lucca and Pisa, the former issued a safe-con-
duct to Christopher of Parma, who was in the service of Pisa, to travel
.-^ TR.] 3 [For mpnnomitate read sup
a De Bannitis,
Part 2 of the
second period
(?).qu. 15.
b Consilia,
beginning:
Licet ista sit
quaestio*
d Consiliwn 33,
beginning:
In casu prae-
misso.
e Consilia,
BLV.4I4,
beginning;
Coneessus fuit
sahusconduc-
tus.
1 ConsiUttm
363, begin-
ningi
male.
256
A Treatise on Military Matters
[Part IX
* Consilia,
Bk. I, 203
(Visa quodam
salvocondiictu),
last two cols.
b Consiliuin
363-
without molestation from Pisa to Parma through the territory of
Lucca, taking six horses and as many horsemen with their arms and
the like. But soldiers from Lucca, on a raid through the territory of
Pisa, intercepted this Christopher on his way to Parma with the above-
mentioned safe-conduct, and made him a prisoner.
[113] Angelus held that the man was wrongfully arrested; for, says
he, ambassadors of the enemy are just as secure while they are yet within
the lines of those who dismiss them as when they have already reached
the enemy citing Digest, L. vii. 18, though it is not so stated in that
law: again, because, when something is allowed, we take for granted per-
mission also for a preliminary that is essential to it, and without which
the privilege would be nugatory; thus where the drawing 1 of water or
the right of burial has been granted, we assume that the right to travel
for either purpose is allowed also. And, in that case cited by Angelus,
the actual wording of the safe-conduct allowed some latitude : 'to with-
draw from Pisa and to go into Lombardy' which is a clear expression.
The commune of Ancona granted a safe-conduct to Berengarius
of Barcelona, for himself and for the property belonging to him and his
partners, in such comprehensive terms that he was protected even from
his creditors. At Ancona 2 there was a consul who administered justice
for the people of Aragon by order of the King of Aragon, and with the
consent of the people and commune of Ancona.
This consul attached the goods of the above-mentioned Berengarius
on the demand of a Spanish partner of his. Paolo di Castro claims that
this was within the law, inasmuch as the afore-mentioned consul was
a proper judge with reference to the nature of the initial situation, the
nature of the matter then at issue, and also of the nature of the con-
tract. It was said, too, that the goods taken from the man were not
properly his own; for a safe-conduct does not cover such goods in a
man's possession as are shown to belong to another. And, again, a safe- 15
conduct will not avail such a holder i between him and the partners
thereby protected, a dispute regarding the goods in question should
arise. This is the verdict of Paolo di Castro 1 on all these points.
Very like the case on which Angelus b rendered his decision is one
that came up for discussion not many months ago. For the most
illustrious Juan de Figueroa, commander-in-chief under the Most
Serene and^ Excellent King Philip of Spain, granted a safe-conduct to
the Marquis of Masserana to go from his castle at Candelo to Venice.
It happened that, during the term of the safe-conduct, the above-
mentioned general with his army invaded the lands of the marquis
in question, who was of the French party. The marquis himself
was taken prisoner, and he arranged for a heavy ransom, which he
paid in part, giving bondsmen for another part. For the remainder he
L] a [For Anccorn read Ancona.-S,*.]
Chap. I]
and Warfare
257
was trusted, being obliged to take oath that he would pay at a time
agreed upon.
But when the day for payment had passed and he was brought to
trial, he defended himself on the ground that he had not been lawfully
captured, and that he was not bound to make the payment agreed
upon; in fact, as he argued, he might even enter a claim for the
restoration of what he had already paid. His main points were some-
what as follows:
(1) At the time he was taken he was making preparations for his
journey, and, for that reason, he should have been regarded as already
on the way.* [US']
(2) If that which was greater was allowed him (i.e. to pass through
hostile territory), much more had he the right to do that which was
less (namely, to remain in safety in his castle until he had made his
preparations).
(3) That a broad interpretation should be allowed. (So Decio*
said in discussing this matter, citing Baldus. c )
(4) A plea was entered that it was as unfair to keep him at his home
so that he could not set out, as to stop him after he had already begun
his journey. d
(5) Finally, it was claimed that it was unseemly to boggle about the
words and the permit of the Emperor. (This was said also by Decio, e
citing Code, II. xliv. I.)
Being one of the arbiters and judges in this case, the justice of the
16 prisoner's plea seemed to me 3 very doubtful, and, in the first place,
because I did not feel sure that this safe-conduct was to be interpreted
broadly. In fact, just the reverse of this, it appeared that it ought to
be understood strictly and exactly, so as not to be stretched beyond the
natural meaning of the words.
For this was a safe-conduct contrary to law; first, because it was
issued to an enemy; and, second, because not issued by one having
17 supreme power. For only the Emperor has the right to grant leave of
absence or permission to return;* 3 and the prerogatives of the Emperor
are strictly and carefully differentiated from others. See Digest, L iv. 3,
where every one comments; Felinus discusses the point at length on
Decretals L iii. 18.
And though under this head Baldus g states that the intent of the
grantor is assumed to have been an intent in the mind of a wise and
good man, surely it is not likely that any one who is wise will believe
that it was the intent of the grantor that his enemy should enjoy the
blessing of security while lingering in the enemy's country, where he
could help the latter with advice, supplies, and all his resources.
1 [For nee eximwdi I read I cxiiiwidisTb*)
3 [The text of the Digest, however, has to do with exiles. T
1569.64 L 1
' [Mid* Le. Mtfe'.-T*.]
a JDzg. L. vii. 6;
Dig. IV. vi. 35,
8, gloss on
the word
agw? ; and
Bartolus on
Dig. XXIX.
i-43-
b Consilium
51, col. 2,
c Consilia, Bk.
1,490.
at the middle.
Consilium
xix.4-
* Consilium
414, above
cited.
258
A Treatise on Military Matters
[Part IX
a Beginning:
Reverend,
paler.
b (F.locamtT.)
c On Dig.
XXXII. i. 35,
i, col. 2, the
words Item
* 1bid., the
words /ton :
verisimili-
tudine.
Consilinm 457
(above cited):
the words
Dicendum est
constal ex
verbis, &c.
JDfc.V.i.6.
And this view is confirmed by the words of Baldus in his Consilia, Ig
Bk. 1, 457, a and he repeats in an incomplete chapter in Consilia, Bk. V.
4i2, b where he says that, to avoid falling into absurdity, the mono-
syllable 'from' (a, ab) is understood in the exclusive sense, as was stated
by Bartolus also. (As a matter of fact, probably neither the recipient
nor the grantor anticipated the event, but the recipient asked merely
that he might make his journey in safety, with no reference to remain-
ing in security at home; see Bartolus. d ) I9
Again, the same judgement must be rendered regarding the
terminus a quo as regarding the terminus ai quem ; for there is no reason
why the safe-conduct should have extended any more into one terminus
than 1 into the other. Now a person should not receive a safe-conduct to
a point within the terminus ai quem ; therefore, not in the other either.
[114] Furthermore, the words stipulate security while things are in
motion and in the act of transit ; therefore they should not be stretched
to cover inactivity. This is supported by a passage in Digest, XLIIL
xix. 3, 13, near the middle, where it is stated that, under the interdict
there referred to, one may claim the right to travel a road, but that at
times the right of repairing it cannot be maintained. 20
Again, when the phrasing is doubtful, we depend upon interpreta-
tion, either antecedent or subsequent, 6 Here we have the subsequent
declaration of the grantor himself, who affirmed that the man was
lawfully captured. Moreover, it is certain that interpretation of the
terms 2 belongs particularly to the grantor. 1
Still again, the man promised under oath to pay; the time passed
by; and an oath is strictly 3 binding. It was his duty, therefore, to pay,
and later to demand restitution, according to the comment on Decretals
IL xxiv. 21, el. I.
It seemed possible to rebut citations in support of 4 the opposite
view and, first, Digest, L. vii. 6 and 18; for there a different rule
applies, inasmuch as the subject-matter in that case is favourable, but
here the reverse; and the law there is excessive in detail and specifica-
tion. Furthermore, those provisions have to do with time, and we are
dealing with place.
Moreover, in regard to the case on which Angelus advised
advice which was cited in behalf of the marquis as being a case in point, 5
the answer was made that the soldiers in question were already in the
act of transit, and the wording of the safe-conduct was clear. For it
read: c to go from Pisa as far as Parma', and the men were taken in the
act of travelling.
The matter, however, was not brought to a decision because Don
Juan de Guevara to whom the ransom was owed, did not press the suit.
1 [For unumque read unum qwm.Tb.]
3 \pracisst, i.e. praedse. TR,]
5 [Interpreting inter, as in ter(mwis).--~ TR
2 [For vere borum read verborum.Tn.]
4 [For conlrarium read in contrarium.fn.}
Chap, I]
and Warfare
21
It is left for the reader to decide which of the parties has the better
case. 1 For I speak to inspire discussion, and I affirm nothing, as no
decision has up to this time been announced.
In discussing this subject, the Doctors say that a safe-conduct
issued for the outward journey is regarded as having been given also
for the return; so Bartolus and Angelus.* According to them, the
reason is that a person will not be said to have gone in safety, if he is not
allowed to return in like manner. On this principle Panormitanus b
declared that the period of going, stopping, and returning, are rated
as in the same category; and that he who wills a result, wills also its
necessary preliminary.
Geminianus c took the other view; and he seems to be supported
by a passage in Code, XL ii. I, where people are ordered to be immune
going ani coming. This consideration is there touched on by Bartolus;
and see Alexander/ who says that protection granted to those coming
to the mart at Lyons 2 is not reckoned as extended to their return
from there.
My view is that different decisions could be rendered on the basis
of the facts concerned and the intent of the grantor. For suppose that
an army-chief should issue to an enemy a safe-conduct to come within
his lines [114'] and to remain there for three days; will the enemy not be
allowed at the end of the three days to depart in safety? Whereas, if
he gives a person a safe-conduct to journey to Rome or into France,
the action is consummated in the bare fact of travel, and nothing
extraneous is included; hence the words will be strictly interpreted.
This was the verdict of Felinus 6 in a very similar case. And there is
support in a passage in I. iii. 1 1, 8 in Sext, where again Geminianus
comments to the effect that there would have been no point there in
the mention of return, if the law had been meant to be so understood;
however, de Franchis there takes the other view.
But if the factors involved are doubtful (so that we are not certain
whether return also is included), since we are dealing with an
unfavourable subject-matter, perhaps it will not be unreasonable, in
regard to privileges that ought to be carefully and strictly interpreted, to
decide against the man who finds himself in difficulty as a result of
careless phrasing. Cf. Digest, XVIIL L 21, and II. xiv. 39; and such
was the decision of Alexander. 1 Remember, however, that the Doctors
generally seem to hold without any qualification that a safe-conduct
given for the outward journey is good also for the return. And it is not
easy to cross over from the highway to a by-path.
22 Further, it is customary to raise the question whether a safe-
conduct issued to Titius with ten associates includes also a Jew
1 [For iustitia read iusiitiam ; or perhaps the whole phrase should be emended to read: ufrt faftium
iustitiafaveoLTk.] * pf Lup is for Lugidun]i.-~ TR.]
* On Dig.
XLVII. xiL
5; and
Bartolus and
others on Codt,
XI. ii. T.
b On Decretals
III. viii. ?, no.
6.
c On Decretals
I. xxxiv. 9,
and Decretwn
I. xlv, 9.
d Consilia,
Bk.II.46,
beginning:
Ponderatis
vcrbis*
* On Decretals
I. xxxiv. 9,
col. 3, the
words
credtrem
dictum Cold.
* Constiia,
Bk. IV, 2,
no. 6 ; and 106,
no.6;Bk.V,
128, near the
end.
260
A Treatise on Military Matters
[Part IX
* On Dig.
XLVIII.iv. i.
b On Dig.
XLVII. xii. 5.
c Consilium 51,
above cited.
< On Dig.
XLVm. iv. i.
' On Dig.
XLVIII. iv. i.
found among them. Bartolus a answered in the affirmative, and the
Doctors generally follow, as Angelus; b and Decio c repeats. But,
according to him, it will not protect a heretic or Saracen, or any one
belonging to the enemy, 4 However, his remark about an enemy I think
subject to this limitation : unless the recipient himself be a man belong-
ing to the enemy; for in that case extension to the persons associated is
easier.
Angelus 6 says also that when a safe-conduct is issued to Titius and 23
his associates, such persons should 1 travel with a definite common
purpose, and not casually and incidentally; for they will not be recog-
nized as 'associates 3 , if they have banded themselves together, each
with a view to his own private enterprises. And for this reason he
warns against going separately to different houses of entertainment.
But this seems to me to complicate the subject unduly, and to
offer a wide opening for soldiers to make game of these safe-conducts.
Hence I hold it sufficient that the men all travel together with a
definite purpose, and that no one of them be open to criticism as
was said above of a heretic, an enemy, and such others (e.g. an exile),
who in the intent of the grantor are probably not included in a
general permit.
The Doctors raise also the question whether a safe-conduct is 24
valid only for initial use, or whether it allows of repetition. And in
general they hold that it is good only for initial use, but, however, with
a distinction; (i) A definite request precedes, and the safe-conduct
follows; and then it depends [115] upon the request whether the safe-
conduct was definite or indefinite; (2) The request was indefinite, and
the safe-conduct definite; and then we adhere to the specific provisions.
But if both are indefinite, the safe-conduct is good only for initial use,
as I have said. So Bartolus/ following Oldradus, whom he cites.
And this seems more reasonable than what Panormitanus said on
Decretals I. xxxiv. 9 (where he is followed by Felinus), namely that when
there is a period of time specified, use is permissible at any point within
that limit, and even repeatedly. For it ought to be taken for granted that
it is the intent of the grantor that the act take place but once. And since
the phrasing allows this interpretation, even though it would allow of
another, in case of doubt the verdict will be against the man who gets
into difficulty as the result of loose phrasing, 2 especially if it deals with
specificallyunfavourable subject-matter, accordingtomyremarksabove,
There is exception, however, if the circumstances of the case look
to another decision. For suppose that a safe-conduct was granted to
peace delegates to meet in a specified place during the course of a
month; or suppose that, as in the case cited by Imolensis, 3 a safe-conduct
1 fOmit qiM before debcnt. TR.]
* [Here, the careless applicant. TR.]
3 [For Iwb read Imo. i.e. Imolensis. TR.]
Chap. I]
and Warfare
261
was granted to haul wood or some other commodity into the city
during the course of a month. I should suppose under these circum-
stances that repeated action is permissible.
In view, however, of the fact that these disputes are often
perilous, and, while the argument is going on, the holder of the safe-
conduct is 1 in the hands of the enemy and barbarians, it is the wiser
plan to do business on a safe basis, and not to plunge one's self into
danger, but to see to it that the terms are fully clear and plain. And those
who accept safe-conducts may rest assured that they never will secure
them too clearly and plainly worded. (And that, in case of doubt, a
safe-conduct is valid only for initial use is the conclusion reached by
Alexander* on the basis of many similar situations,)
Moreover, the exact force of the wording is insisted upon so
drastically that, if a safe-conduct is issued to a fortress-commander
who has surrendered his post, allowing him to depart in safety with his
associates and his goods, this does not cover the goods of his associates.
Such was the decision which Florianus b said that he rendered to the
Duke of Carmagnola in view of that possessive adjective 'his', which
indicates ownership. (To digress, Carmagnola was a distinguished
military leader and at one time commander of the Venetian 2 army at
the period when the Sforza family and the Piccinini were very promi-
nent in Italy, his birth-place being Carmagnola in the Piedmont
district. The Venetians, however, finally ordered his decapitation.)
And although Decio appears to have rendered an opposite verdict,
be assured, however, that there is no conflict. For in the case con-
sidered by Decio the words were capable of including also the goods of
the associates; so there should be no cavil regarding the wording.
25 Next I raise the question: If a general issues a safe-conduct to last
during his good pleasure, supposing him to be removed by death or per-
haps succeeded, [US'] would the safe-conduct hold over into the time
of his successor ? The Canonists' 1 and Bartolus 6 consider this problem;
and it is the common verdict of the Doctors that it makes no difference
whether the grantor dies or finishes his term, on the ground that in
either case a concession 'during good pleasure' lapses for since the
reading is 'as long as I will', 3 a person who is dead no longer wills, nor
yet a person who is no longer in office (for it is his to will, who is able
also to forbid, and vice versa)' unless the phraseology involves the office
or position. So Jason; 8 but de Franchis 11 is in doubt on this point.
However, restrict all this to cases where, as I have said, the reading
is 'during my good pleasure'. But if other wording is used, this must
be carefully examined; and it may be laid down as a general rule that
when the safe-conduct is revokable only by a change of will, then a
[For est read /. TK.]
[For inwluntatem read in wluntatm. TR.]
[For Venetum read Venetorum, TR.]
* Consilia,
Bk. IV, 16,
Breviter in
casupraemisso.
v, 4, at the
beginning.
c Consilmm 51,
above cited.
5-
*O
i. 46, 2 ff.
i.46,2ff.,
no. 13.
262
A Treatise on Military Matters
[Part IX
* On Code II.
vi. i.
c See the
with, comment
on Decretals
I. xxix. 5.
* On Code
VIII. i. i.
person who dies is not said to change that which he wills, but to cease
to will, and for that reason the permit is not revoked. On the other
hand, the permit may require a continuance of will, and then it lapses
at death. To this, I think, we may reduce all the remarks of the Doctors
on Digest, XLV. i. 46 and on Sext, I. iii. 5. Any one wishing further
information should consult Jason, a who devotes three columns to the
subject; and something is added by Baldus. b
Under this head there came to my attention another problem 26
which I do not mean to pass over in silence. Some generals had agreed
that certain commodities might be transported back and forth despite
a war; but arms of all sorts were banned. It happened that a certain
merchant on the imperial side carried among the goods allowed some
fifty or a hundred scabbards to accommodate swords. It was claimed
that here was a breach of agreement, and, therefore, that the scabbards
were liable to confiscation, on the ground that when an original article
is ruled out, its appurtenance also seems ruled out.
Compare Digest, II. adv. 32, XL VI. i. 46, and II. i. 2, with its sub-
ject-matter, where it is stated that when one thing is forbidden, that too
is forbidden without which the first is impossible; and this applies with
special force when the same principle is operative in both. (Here is the
explanation of Digest, XXIII. ii. 38, which seems in conflict with
Digest^ XXIIL i. 16; for the latter, after forbidding matrimony, puts
the ban on betrothals also, and the reverse ruling is made in Digest,
XXIIL ii. 38. All the writers comment on Code, V. ii. I.)
Again, there is no other reason for prohibiting the transporting of
arms to the enemy than not to equip the latter for warlike activity; and
this reason applies also to scabbards, without which swords are not
transported. Looking in the same direction is the rule for things
associated, regarding which a like verdict is expressed in Decretals, I.
ii. 3 and II. i. 3, and in Digest, VI. i. 43; and there is support in Digest,
XXXIV. i. 6, where it is stated that in case means of sustenance are be-
queathed, clothing is included. On this basis, in the present instance
scabbards are included, [116] being the covering of swords.
But the weight of evidence seemed on the other side. For in regard 27
to matters undesirable and punishable, we hold to the exact sense of
the words. Hence Baldus d stated that a statute which punishes a person
committing a crime in the street does not apply to one who offends
in a mansion adjacent thereto, and a statute that punishes a person
who smites on the face does not apply to a person who strikes even a
heavier blow on an adjacent part. This Jason elaborates on Digest II.
i. 2, last col,, where on that ground he infers, in the case of Digest, XXIIL 28
i. 16, that if a penalty has been put upon marriage, it will not include
betrothals also; for though with the prohibition of the one, the
other, too, is forbidden, still the punishment does not apply in like
Chap. I]
and Warfare
263
manner to the second. This could be developed at greater length; but
it does not suit my present purpose to introduce here the question of
extension of applicability, which has very recently been discussed at
length by Aymo Cravetta. a
And a scabbard is not a necessary appurtenance or adjunct of a
sword which is an essential condition, if the same rule is to apply to
both. b For we cannot suppose that scabbards and sword-belts were
devised immediately upon the discovery of the use of the sword
just as, upon the discovery of the use of the horse, the saddle and other
trappings for this purpose were not at once devised ; rather, experience
and lapse of time account for much.
Furthermore, though in regard to subject-matter that is favour-
able, the same rule applies to appurtenances as to the original article,
in matters punishable the reverse is true, in view of the rule: 'Restrict
the unpleasant', &c., which, on Digest II. i. 2, Jason applies to three
important problems.
Again, cloth, wool, and linen are not less necessary covering for the
soldiers than scabbards for swords; yet these were not put under the
ban even boots and the like.
And that in respect to unfavourable subject-matter the term
'sustenance 5 does not include clothing is stated in Digest, II. xv. 8, 12.
But whatever the merits of the case, that trader was made to suffer;
for he lost all his wares (which he ransomed for six hundred crowns) on
the principle that the lawful, on account of the unlawful, escheats to the
fiscus. (On this last point, however, Bartolus should be consulted. )
Those, therefore, who secure these safe-conducts and trust to
them, will do well to look out for themselves. For soldiers, too, under-
stand the art of weighing the words in the balances; and the justice of
the camp is often administered without reference to books, and
frequently with little circumspection.
29 Another point to be noted under this head was mentioned by
Angelas,* namely that when a safe-conduct is granted, it includes such
suite as is essential; and this is manifestly reasonable. For if a safe-
conduct is issued to a noble, he ought not to travel on foot, nor alone;
but he will take with him his regular attendants. However, it is the
safer plan to secure this privilege more specifically.
30 I append another question which arose in actual practice. In the
year 1551, while there was peace between the Emperor and the King
of France, [116'] a certain Germanicus Savorgnanus, a distinguished
soldier of the king, secured from Don Francesco d'Este, representative
of Ferrante di Gonzaga, imperial duke and vicegerent, and prefect of
the fortress at Asti and of the whole Piedmont frontier, a passport and
safe-conduct (as it is called), to visit the springs of Acqui in Liguria,
because of his health.
a De Antiquiia-
tibus Tetn-
porum.
h Dig. XII, vi.
67, 4; and
Felinus at
length on
Decretals
I. iii, 27, col.
12 and ff.
c On Dig.
XXXIX. iv.
ii f 2; and
On Code IV.
xxxiii. 3.
6, 6.
264 A Treatise on Military Matters [Part IX
Scarcely had he arrived there when the French attacked two of the
Emperor's posts, and war suddenly broke out. Losing confidence,
therefore, 1 in his passport, Germanicns started back to his friends, and
was arrested at Asti by the above-mentioned prefect. The question
was : could he lawfully be detained ? And it seemed that he could for
various reasons:
(1) Every permit and arrangement is understood with the proviso
that there be no change in the situation. But here there followed a
very severe upheaval and disturbance of affairs, and that, too, by the
act and through the fault of the enemy, who had no claim to the use
and benefit of a particular agreement and pledge, after doing violence
to the public agreement ; and
(2) The man himself shared in the fault no less than the others.
For species and individuals are a part of their class ; and he was on the
way to aid those of whose action he thereby indicated his approval.
(3) It was greatly to the Emperor's interest to hold the man, inas-
much as he had seen and examined Asti thoroughly, and, in the careless-
ness engendered by peace, had at his leisure noted the defects of the
camps and fortifications, being a man skilled in the intrenchment of
forts, and one who made this his 2 chief business.
(4) The case was strengthened by a previous happening, namely
that a certain French commander, by sharp practice and almost by open
violence, had arrested a man of the imperial party before war had yet
broken out, claiming that thus an account was being balanced. And
on that ground his act was less justified because committed while
peace still prevailed; for if, on account of an injury done to a subject,
one may have recourse to reprisals, as they are called (namely, to a sort
of warfare), provided that a warning precedes, how much more is this
allowable because of a flagrant injury, and in a time of declared and
open warfare?
I rehearsed all these arguments, and perhaps others, to the two
Dukes, Ferrante* and Francesco, who asked my opinion on this point.
I added, however, that the pledge of the Emperor looked strongly to
the other course, and that it ought not to be obscured and evaded by
argument and sophistries; also that it was not seemly that he sanction
this arrest after a pledge was given, and in view of the fact that he is the
arbiter of detention and release. For the prisoner, who had not relied
upon peace and the public agreement, but had sought out a more
definite and trustworthy protection, ought not to be disappointed.
This single argument carried the day (such is the conscientious-
ness and honour of good men), and Germanicus was allowed to depart
somewhat later, 4 however, both because of the weakness of the forts
1 [For igirur read /g#wr. TR.] 2 [For sno read suo. ED*]
3 [Ferdivumdo here. EpJ * [For servius read jmwj. TR.]
Chap. I]
and Warfare
265
and garrison at Asti and for another more private reason which it is not
now important to communicate.
3 1 Some other points touching the matter of safe-conducts l are treated
by Angelus of Arezzo a (followed by Augustinus b ), who lists many
indulgences. He, too, specifies when a judge may grant a safe-conduct
to a banished person or a criminal, and when he should honour one
that has been issued. And [117] among other things he states that if
a crime be such that the offender may be excommunicated, his safe-
conduct can be disregarded. Again, he makes the distinction: (l) a
safe-conduct was given for good reason and after investigation of the
case, and then it will be honoured; (2) it was given offhand, and then
the reverse.
32 He says there also that if the holder commits a fresh crime, his
safe-conduct 2 may be disregarded with impunity, citing a gloss on
Decretum^ II. xxiii. I. 3 which, to my mind, does not show this, but
merely that if there is fear that a prisoner will disturb the peace, he
ought not to be spared, and may be condemned to death. However,
I think that the remark of Angelus is true; for the man who offends
against the law has no claim upon its benefits.
Bartolus also treats this subject of safe-conducts on Digest I.
33 xviii. 6, 2, and with reference to the security which is given to a
person against a person which is specially our theme e.g. when a man
is apprehensive that his personal enemy will injure him. And he states
that for good reason the man may petition for a pledge and assurance
from such an enemy that he will not be injured by him; and this will
be given not only by the enemy himself but also by his household and
associates and even in favour of the household of the petitioner.
Bartolus declares also that the pledge given will hold even in a different
territory; so that if you have given me security at Asti and injure
me in Milan, the penalty is incurred and the pledge is declared violated,
so that even at Milan action may be begun to enforce the penalty
agreed upon (for if you were to understand Bartolus to mean that action
can be begun to enforce the regular penalty for the crime and wrong
there committed, how would there be room for question ? For a person
always falls under the jurisdiction of the court where he committed the
34 crime). c Likewise he declares that if it seems best to the judge to grant
permission to the person who fears violence to take along friends and
members of his household to protect him (but at his own expense),
this will be allowed. So Bartolus. d
The effect of the assurance secured from such an enemy is that the
latter is punished more severely, if he disregards it, than if it had not
been secured. This seems beyond question; for the man commits a
graver wrong who injures a person who is under the protection of a
1 [For sdusamdttdus read sabusfonduebts . ED.] z [For secutitas read securiias. ED.]
1569.64 M m
a In Malefict-
orum Materia,
in gloss quod
farm piib.,
qu. 5.
b Ibid.
c See comment
on Avthenlica
following
2 (Qua in
prmnda).
a On Dig. I.
viii.8.
266 A Treatise on Military Matters [Part IX
judge's warrant and safe-conduct, than one who offends otherwise, and
not under these circumstances. So Bartolus. a My view is that it
amounts to betrayal, and that it deserves the severest punishment.
In addition to the safe-conduct that is issued to public enemies,
and a second which is granted to criminals, there is also a third variety
which is given to debtors, to protect them from their creditors. On
this I subjoin a few remarks.
This protection the creditors themselves can grant, as is stated in 35
Code, VII. Ixxi. 8. And if there is not agreement among them, the 36
decision will rest with the majority, regard being had for the amounts 37
owed. For if a thousand and ten crowns are owed to one creditor, and
five hundred in all are due to others, the first mentioned creditor will in
himself constitute a majority; for 1 it is fact and not person that is con-
sidered. Thus it is ordered in Code, VII. Ixxi. 8.
And a respite of five years is granted with the proviso (according to
some) that it is within the option of the creditors to declare: 'we desire
to sell the property forthwith and immediately, without [117'] wait-
ing five years', and that a creditor will get no hearing who desires
against their wish to enjoy the reprieve. So Albericus on Code VII.
Ixxi. 8, and this is shown in the text there ( and the option be given to
the creditors', &c.).
Hence it is surprising that Albericus there states that if a debtor
wishes to make surrender of his estate at once, he should be given
a hearing, and that the choice will be his. For this does not accord
with the words cited from the above text, unless one is to suppose 38
that the words referred to are words of the debtor reported by the
Emperor, the man begging that he be allowed recourse to the sad
expedient of surrendering his estate, 'the option having been given
his creditors', &c.; for it would be eminently unfair, if the creditors 39
chose to grant the respite of five years, that at the end of that period
the man should be condemned to prison without any prospect of
relief through surrender of his estate which Baldus there said was the
proper procedure, if he himself preferred to make the surrender at once.
Hence our view is the better.
Again, on Code VII. Ixxi. 8, Baldus stated that those bankrupts
and business failures (of whom to-day we have a generous supply), who
go through bankruptcy proceedings, not as the result of ill fortune, but
with deceit and intent to defraud their creditors, ought to be rounded
up and delivered over to the tender mercies of these creditors. 2 But
instead of this, they protect themselves; for, taking time by the fore-
lock, they select a safe place of refuge and secure broad immunities
from rulers, who (if it were permissible) I should say commit a wrong
1 [For fosfque read pstquam. Tn.]
2 [For tradi dilaniandoribus read tradi dilaniandi creditoribus.f%.]
Chap. I]
and Warfare
267
in granting concessions so promiscuously; and 1 they would do better
either not to grant such protection or to cancel it if given, first warning
the holder to look out for himself. Far fewer then would be guilty of
such wrong, and the public weal would be much advanced.
40 Once more, Baldus* stated that this expedient of surrender of
estate is a very wretched recourse; for a man scarcely retains his rags,
and, besides, in many places there are statutes which degrade him,
e.g. forcing one who surrenders his estate to strike the rock with his
buttocks. b
41 This particular statute he said is not valid, citing Code, XII. xxxv.
12. Better support seems to be found in Code, VII. Ixxi. 8: 'without
loss to their reputation' words which a gloss explains: 'that the man
is not disgraced'. For who would say that there was no loss to the
reputation of a person forced to such procedure ? There is support
also in Digest, XLII. iii. 9, where it is stated that it is possible to
surrender one's estate by messenger 2 or by letter.
The opposite practice, however, is implied in the comments of
Alciati; and there are reasonable enactments which he there cites, d
ordering that those who are ruined by misfortune, and not by extrava-
gance, shall not be thus humiliated. But the Emperor Hadrian (as re-
ported in his biography by Spartianus 6 ) ordered that bankrupts of this
sort be flogged and exhibited 3 in the forum a passage that Alciati did
not recall. This question is discussed also by the canonists. 1 Jason g
mentions none of the above details in his treatment of the topic,
stating simply that the statute is not valid.
42 Baldus* adds that, after surrender of his estate, a man may not
[118] change his mind, if the action was taken before a judge and with
the consent of the creditors. He cites Digest, XLII. iii. 8, which does
43 not so state; but therein is the declaration that one who surrenders his
estate must first acknowledge his debt, and have sentence passed upon
him or admit his obligation.
For this rule there may be two reasons: (i) that there be security
for the creditor at whose instance the surrender is made, so that he be
not obliged later, perhaps in the company of other creditors, to estab-
lish his claim, as Bartolus 1 pointed out; or, again, (2) that the creditor
may be secured in regard to a balance (if from the goods surrendered
44 he does not realize his claim 4 in full), in case the debtor should improve
his condition; for the claim holds good against such a contingency. 1
But understand, however, that with reference to later acquisitions the
debtor is dealt with in a more civil and courteous fashion, and, of course,
on the basis of his ability to pay. k
1 [For meUusquam read meliusque. TR,] 2 [n&dum, i.e. mtntium. TR.]
3 [The original reads catomdim . . . iussit (*he ordered to be flogged'). Tfc.]
4 [eg, i.e. aes. Tit.]
Ob CM* VII.
Ixxi. 8,
b [On this
see Siatuta
Mantuae, lib.
2, cap. 21, ex
Cod. reg. 4620;
quoted in Du
Cange's Glos-
sarium, vol. ii,
p. 280, ed.
1883-7-]
.i
II. chap, xlvii,
* Theodosian
Code, IV. xx.
i ; Justinian,
e [chap, xviii.]
' On Decretals
III. xxiii. 3.
* On Inst. IV.
vi T Cum
quaeslio, no.
19.
iii. 9.
iii. 8.
iii. 4.
* Ibid., at the
beginning.
268
A Treatise on Military Matters
[Part IX
iii. 8, the
words quaero
ulmm post
cessionem.
iii. 5 and 3.
Cafe,
Ixxi. 2.
d Dig. V. iii.
5, at the be-
ginning.
6 On Dig.
XXXVI. i.
52, col. i.
1, 100, begin-
ning: Super
primo casu,
at end.
s On Dig.
XXIV. iii. 12,
at end.
xxvi. 2, the
words luxio,
prtxdicta.
10xg.XILi.4i,
at lie middle.
In regard to my remark that a debtor may not change his mind,
Bartolus 1 (against Baldus) takes the other view; and there are such
statements* with exception, however, in case the goods have already
been sold. c
As for my statement that claim is made upon the debtor after
surrender of his estate in case his condition improves, 1 understand that
he is liable not as before for the full amount, but only to the extent of
his means.
And in regard to the debtor's subsequent acquisitions, the reckon-
ing is based on amount and not on kind, according to Digest, XLII.
iii. 6 a ruling on the basis of which Bartolus there says that we
should consider what the income from a thing is, and not what its
character. Thus, according to him, if it were a large mansion, or some-
thing of that sort, the creditor would be reimbursed on the basis of the
income from the rent.
Hence Angelus d stated that, at Rimini, with his brother Baldus he
rendered a decision to the effect that when maintenance is owed in 45
amounts proportionate to the resources of an estate, this should be
paid in accordance with the amount of the income, and that the land
itself should not be sold, even though the income is insufficient; but
that the reverse is true when maintenance is owed outright.
As a unique case which he says is not found elsewhere in law, he
cites Digest, XLIL iii. 6, following Bartolus there. So on Digest
XXXIV. i. 22, Bartolus states that lands should not be sold to supply
maintenance, and he is followed by Imolensis 6 and Alexander 1 ; and
this principle could be supported more at length, But Alexander 8 claims
that the rule of Bartolus holds only when maintenance is due from a
claim based upon gift, and not if it is due from an encumbering claim.
But Baldus h otherwise understands the words: 'whether from
the amount of that which is acquired, or, on the other hand, from its
kind 3 (for which see Digest, XLIL iii. 6). For he says that regard is had 46
for the amount, i.e. the ordinary valuation, but not for the kind, i.e.
the appraisement of sentiment. 1 This he stated also on Digest XII.
vi, 8, at the end [US'] an interpretation which the above law will not
bear, for it recognizes merely a difference between 'how much' and 'of
what kind'. And there cannot be quality apart from quantity; for
quality has no basis except in substance. 3
But since it is stated in that law 2 that if a man surrenders his
estate and afterwards acquires a modicum, his property is not subject
to sale a second time, the question arises : What shall be the criterion, so
that we may know whether his acquisition is a modicum or an abun-
dance ? And the answer is that it is the quantity and not the kind that
is to be taken into account. For suppose that a large mansion belonging
1 [For supentnientis read superveniis. TR.] 2 [i.e. Dipst. XLIL iii. 6. TR.]
Chap. I]
and Warfare
269
to his family should fall to a debtor by legal inheritance one that it
would not be seemly to sell, a surely its 'quantity' will be reckoned as
its value in the way of revenue, and not as its market value.
(And although according to this interpretation there seems a con-
fusion of the exact meanings of these terms 'quantity' and 'quality',
nevertheless Tiraqueau, b citing this same Digest, XLII. iii. 6, stated
that quantity and quality have almost the same content.)
I hold, too, that in this case the judge will determine what ought
to be done from the point of view both of amount and kind. This is
indicated by Digest, XLII. iii. 7 ('if, however, such property', &c); for
the word 'such' surely refers to kind.
Baldus, moreover, says that it is a matter of discretion with the
judge, whether, in view of the standing of the debtor, a valuable house
or castle should be sold. As for Digest^ XLII. iii. 6, he declares that the
quality (i.e. whether it is prized) is not taken into consideration, but
its market value should be looked into.
Why reimbursement is made to the creditors out of the original
estate through the sale of everything, whereas the rule is different in
regard to later acquisitions, is explained in Institutes, IV. vi, 40,
namely that it would be a cruel thing 1 to condemn a man to payment
in full after all his property had once been taken away.
47 Furthermore, I believe that in the case where a debtor is driven
to the above-mentioned surrender of estate with loss of standing, the
man is cleared of all further obligation, so that even though he after-
ward acquires property, the creditor has no additional claim upon him,
having once brought upon him such dire disgrace; cf. Digest, XLVIL
ii. 57, I. (This I remember to have read somewhere else, though I
cannot now locate the passage.) And since 2 the discussion has arrived
at this point, it will perhaps be worth while for me to add some details
tending to clarify 3 the subject.
48 The standing rule, then, is that any debtor whatsoever may sur-
render his estate, be he head of a family or son, woman or man (see
Code, VIL Ixxi. 7, where Bartolus and others comment); in fact this
is true also of a collective body, e.g. a corporation or church/
The above rule is restricted by Jason 6 in twelve ways. But in
49 regard to the twelfth restriction he falls into difficulty, in that Baldus'
(whom he cites) declares that a person who has the means [119] to
liquidate his debts may not surrender his estate (being followed by-
Nicholas of Naples 15 ), whereas a passage in Digest, XIV. iv.^7, I is
against this. With that passage Jason here takes issue, forgetting what
Baldus said on Code VII. Ixxi. 8, h namely that even a person who really
owes nothing may surrender his property with the idea of avoiding
Seeflfc.1V.
V. xxx vii. 22,
3-
b De Utroque
Retraclu,
gloss 21, no. 2.
Ixxi. 8, the
words qu
quidem.
1 [For inhumatwn read inhumanum
z [For postque read postqtum. TR.]
3 [nuferaf, i.e. ii
praef., near
end.
*OnInsL IV.
vi, 4
cols. 3 and 4,
<fe Cafe VII.
Ixxi. i, col. 2,
the words
guaero num-
quid Hie.
K On Inst. IV.
vi,4o.
* The words
qweroam
nanim.
270 A Treatise on Military Matters [Part IX
undeserved annoyances and the ill-will engendered by lawsuits. So
a gloss there holds ; and this makes for the man's peace, though not for
the convenience of creditors, and it seems the better view.
Another point worthy of note is the fact that a man who has once
surrendered his estate is not the only person who is called on to pay
merely to the extent of his ability, and with the proviso that he be not
reduced to want; for there are numerous other classes that enjoy this 50
privilege. These you will find listed in Digest, XLII. i. 16 and in many
laws thereafter following, and I here enumerate them: partners in
full, parents, patron, patroness, with their parents and children,
husband, father-in-law on either side (whether of the husband or the
Dz ff . XLII. i. daughter-in-law), but with a reservation ; ai and soldiers (including also
'obsson'^. soldiers of the Emperor's court b ).
XLII. i. 6. In like manner, those who are burdened with public office or duties 51
are held liable 2 only to the extent of ability; for they are not forced to
surrender 3 their property. This seems to me the necessary interpreta-
tion of Code, VII. Ixxi. 5, though the Doctors all understand differently.
For they interpret this law to mean that a person may not surrender
his estate for the purpose of shirking public duties; though this does
not fit with the wording of the law ('that surrender with loss of standing
be allowed'), nor with Code, VII. Ixxi. 3, where it is stated that a
father surrendered his estate because of civic burdens. In addition to
this interpretation of mine (which is the one commonly accepted), the
gloss there offers another, to the effect that the reference is to a person
Ixx1 ' 5> who, summoned to a service for which he is not equipped, is obliged
to surrender his estate; but this does not fit with the expression 'be
*SeeM. allowed'. 11
Likewise, a voluntary giver enjoys this privilege; and he 4 alone
deducts his debts, in addition to an allowance essential to respectable
living, 5 making payment to the beneficiary out of the residue. But
J ^ XLn. others & not deduct their debts. 6
Possibly it might even seem that it could be said that the voluntary 52
giver is the only person 6 of whom payment is demanded with the pro-
viso that he be not reduced to want, as is suggested by Digest, XLII. i.
19, I ( c in fact I do not think that all that he has should be taken from
him') ; for if this is the regular procedure for all who are subject to such
liability, why was it necessary to insert those words in this connexion ?
However, there is difficulty with a passage in Digest, L. xvii. 173, near
the beginning. But I have held that that law should be restricted to
certain persons, as the first gloss there suggests. Note, however, that
every one else understands otherwise.
1 [For irf ut read wf . TR.] 2 [For conveniuntnr read convemuntur.ED.]
3 [For coder* read cedere. TR.] 4 [For ipses read ipse TR.]
5 [For Gon&gnumrictem read condignum victum. TR.] 6 [For ipse read ipse. TR.]
Chap. I]
and Warfare
271
In any case, that expression 'with the proviso that he be not
reduced to want' the Doctors interpret as referring to respectability
and comfort; so the gloss on Digest L. xvii. 173, and thus Decio a
explains. Moreover, the standing of the person will be taken into
account.
53 Another noteworthy point under this head is that, when this
privilege [119'] of not being held accountable beyond the limit of
ability is applied out of pity, if there is a similar and equal claim for
pity on both sides (i.e. in the case of the debtor and of the creditor), the
creditor will have the preference, if he presses the point of escaping loss.
So Bartolus on Digest XXIV. iii. I2 b (with fuller treatment by Alexander
there), and on XXIV. iii. 36.
54 We must remember, finally, that the recourse of surrender of
estate was not at once developed by Roman law. In fact, at one period
debtors were to such a degree at the mercy of their creditors that not
even their persons were immune, as is shown by Livy's account. For
he says that the populace 1 and individuals imprisoned 2 for debt were
complaining that, fighting 3 in the field in defence of liberty, at home
they were captured and oppressed by their fellow citizens. And
shortly afterwards 3 debtors, bound and unbound, poured into the
streets from every direction. At length 6 an order was issued by the
consul that no one should keep a Roman citizen bound or in confine-
ment, and that 4 no one should take possession of or sell the property of
a soldier while he was in the field, or arrest his children or grand-
children words which show that the creditor had a claim also upon
the family and household of the debtor.
And matters came to such a pass that the plebeians withdrew to
the Sacred Mount/ where they were granted tribunes to protect the
commons against the patricians and any injury from that class. This
happened in the seventeenth year after the expulsion of the kings,
according to Pomponius. 8
As for surrender of estate, the Julian Law was passed later,
affording this relief of surrender to Roman citizens, and perhaps to
all Italians. Finally, by imperial enactments it was extended also to
provincials. 11 Perhaps, however, this privilege was secured by petition
from the Emperor, as is suggested by Code, VII. Ixxi. 8, near the begin-
ning; though the gloss there understands with the words 'from our
majesty' the phrase or other judge'. But at the present time this sad
expedient is everywhere available.
55 The question of the possibility of refusal to surrender one's estate
56 is discussed at length by Felinus. 1 Observe, however, that even though
refusal is ineffective, such action nevertheless entails this disadvantage
1 [Plebei; i.e. pUbeii. TR.] 2 [For next read nest. T
3 [The expression in the original is more logical. TR.] 4 [ram ; i.e. wu. T
xvii. 28, at
end.
b The words
qitaero quid si
mariius.
= II [xxiii. 2].
d [Livy, II.
xxiii. 8.]
[Livy, II.
xxiv. 6.]
1 [Livy, II.
xxxii. 2 ff.]
* In Dig. I. ii.
2, 20.
Ixxi. 4.
1 On Dectetds
II. ii. 12, col, i,
and II. xxiv.
9, col. 3.
272
A Treatise on Military Matters
[Part IX
a Deas. 567
(Nota quod
seeundum
aliquos in
antiqitis).
b Consilia,
Bk. 1, 400,
beginning:
lacdbus, at
end.
c [Dig. L. xvii.
26]; so Baldus,
Consilia, Bk. I,
301 U*
evidentiaifi)
d So Baldus,
as above.
e CmsiHwn
400, above
cited.
*Cbfux7ia,Blc.
the words
secundo casu.
IXXL&
h Concilium
205, above
cited,
Bk.IU,38,
COl. 2.
I On Decretals
I. iii. 19.
* Consilia,
col. 2, the
words circa
secundam
dubitalionem.
that, on account of it, a man forfeits the relief that perhaps otherwise
would be open to him, namely that he be not held to account beyond
the extent of his means. So Romanus. a
And this privilege is not open to a person who is charged with 57
wrongdoing, even if it be a question of money and a civil process.
So Baldus. b
Know, finally, that when a person desires to surrender his estate 58
in order to secure release from prison, all the creditors must be notified.
For in this case the rule of law does not hold 'What may be alienated
against the will', &c., unless the man was imprisoned at the instance
[120] of one creditor only; for then it suffices to notify that one
alone. d
I now take up again the subject of safe-conducts, on which Baldus 6
says many things that should not be forgotten. First, that this protec- 59
tion does not cover crime. And understand this of crimes in the past;
for regarding crimes to be committed there is no room for doubt.
It does not extend either to debts to the fiscus, the reference being 60
to another's fiscus, not that of the grantor. Further, in the third place,
it does not protect runaway slaves, unless expressly so stipulated.
Again, in the fourth place, it is subject to the restriction that no
one shall grant against another what he would be unwilling to have
granted against himself. And a concession touching debts does not
apply to crimes,
A safe-conduct issued to a thief does not avail him if he travels 61
with the stolen goods because of recent handling, which constitutes
a fresh crime.
And a permit for one's own belongings does not include those of
others. This decision was rendered against the officer of a certain great
lord who had absconded with the latter's funds. Bearers of safe-
conducts, therefore, should take warning.
Add also, on the subject-matter of Code, VII. bad. 8, Alexander's 62
statement' that a person who wishes to enjoy the five-year respite
above mentioned must give security as regards payment at the end of
that time, citing Code, I. xix. 4. Albericus/however, takes the other view,
and comments on Code, I. xix. 4, 1 to the effect that it refers to a post-
ponement allowed by the Emperor the case being otherwise, if it is
allowed by the creditors. And if the question is raised how security is
to be given to the creditors, assume that it will be by imprisonment,
as was said above. And this seems the better view.
Alexander 1 also said that a safe-conduct does not cover a debt 63
secured by oath, unless otherwise therein provided ; and this he repeats/
Felinus 1 treats the matter fully; so Alexander 11 again.
As to the question whether a safe-conduct includes persons of
1 [Before universe, omit quod. Tn.]
Chap. I] and Warfare 273
higher rank than those specified, or even the grantor himself, see
Alexander once more. a
64 ^ And if the lord of a castle grants assurance of safety to traders in
his castle, and, because of hostility to this lord, the enemy attack the
castle and plunder those traders, de Ancharano b stated that the grantor
is bound to make good to the latter their losses. last C L
Other points under this head will reward the search of a more
diligent investigator.
1569.64 N n
[120]
HERE BEGINS
THE TENTH PART OF THE WORK
CHAPTER I [121]
ON PEACE
SYNOPSIS
1 Things contrary are by nature related.
2 The end of mirth is heaviness.
3 The ending of war is peace.
4 War should be waged only to secure
peace.
5 Peace should be sought for and wel-
comed.
6 Laudation of peace.
7 Peace from sin.
8 If you desire peace, prepare for war.
9 War is safer than a treacherous peace.
10 What peace is (see also the next chapter,
number 26, near the end),
11 Three kinds of compacts.
12 When war is over all its issues are dis-
posed of,
13 Persons banished before a war are not
reinstated as a result of the peace that
follows.
14 Estates lost on account of a war should
be restored after peace is made.
15 When peace comes, movables and im-
movables should be restored.
1 6 Peace is a sort of restoration in full.
17 Peace terms are to be given precedence
as law above all else,
1 8 Whether goods should be restored to
rebels after peace is made, and under
what conditions.
19 Whether property is automatically con-
fiscated in case of treason.
20 Whether indulgence and amnesty for a
crime protect property.
21 Whether reinstatement by a sovereign
covers goods transferred to a third
party.
22 If debit accounts are 1 collected during
war, what shall be done with regard to
them when peace comes?
23 Whether war is founded on Roman law.
24 Strangers (exteri) and enemies are far
different,
25 Who are strangers (exterl).
To turn now at length to a more quiet and attractive subject, we
1 must recognize the fact that it has been so arranged and ordered by
nature that opposites are bound up together; and the things which
appear to men to be utterly opposed are yet connected with one
2 another. Here applies the saying of Solomon, that wisest of all men,
that the end of mirth is heaviness.*
So death follows life with no interval (wherefore it is said life runs
over into death*), and so that which ceases to cool begins to grow warm.
This is what Plato refers to in the Phaedo^ when he says that all things
are thus produced, i.e. opposites from opposites, and that there is a
mutual development from one into another. Thus, too, a Roman poet
sings in the following strain:
Yet all things from each other spring, and back to them revert.
Disintegrating earth to water turns j the moisture rarified 2
To air and aether speeds 3 afar; and aether, every weight removed,
Straight wings its way to regions of the purest fire.
Then back they turn, a like mutation to repeat.
1 [For sit read "/. T*,] * [For Unmtur read tenwota TR.]
3 [For habet read 0R Tn.]
277
* [Proverbs,
iv.iS.
morphosts,
XV. 244 ff .]
278
Treatise on Military Matters
[PartX
xxiii. i. 3.
b Decrelum, II.
xxiii. z. 6.
c Consilium i,
De Treuga et
Pace.
*[OnDuties,l.
80.]
8 Psalms,
xxxiv. [14.]
* [bcxxv. 10.]
* [xxxii. 17.]
* [St. John,
xiv. 37,]
Corinthians,
vii. 15.]
xiv. 33.]
k
IS.]
1 Summa, II.
ii. [qu. 29,]
arts. 3 and 4.
111 [Isaiah, Ivii.
21 ; cf, xlviii.
22.]
792 ff.]
VI.
xiv. 2, the
word pacetiL
It is not strange that we, too, following nature's lead, should 3
associate peace with war, recognizing it as a sort of relative and con- 4
nexion. For the intent of a people or a king at war should be naught
else than to attain to peace. 8 And wars should be waged, not out of
greed and cruelty, but in the desire for peace." Hence Calderinus c said
that we go to war in order that we may live unmolested and at peace.
And this was the view of Cicero; for thus he speaks ; d 'War should 5
be undertaken in such wise that it be evident that nothing except peace
is aimed at' And the voice of Scripture 6 bids that peace be sought
after, embraced and kept: 'Seek peace', it reads, 'and pursue it.' In
another Psalm 1 it is said: 'Justice 1 and peace have kissed.' And Isaiah 2 6
declared*: 'The work of justice shall be peace.'
Our Lord and Saviour, coming down to earth, directed that peace
be announced and proclaimed 3 : 'Glory to God in the highest, and peace
to men of good will/ Again, upon his return to the heavens, he left
it to his friends as his choicest gift, saying : 'Peace I leave with you ; my
peace I give unto you." 1 Paul bids us to cherish it, when he says: 1 'We
have been called to peace'; and again when he remarks : j 'God, the
author 4 of peace.' [121'] Hence also he exhorts us, k so far as in us lies, to
live peaceably with all men.
No wonder then that St. Thomas 1 calls it the virtue and sentiment 5
of love; and he adds that all created things yearn for it. I admit, how-
ever, that nearly all of the above quoted references have to do with 7
peace of the soul, Hence in one of them there is the addition: 'not as
the world giveth, give I unto you'. Such too was the viewpoint of the
prophet where he says: m 'There is no peace to the wicked. 5
For just as there is a spiritual warfare of which we read in the
Epistle of St. James n ('the wars in you', 6 he says, 'of your 6 lusts') ; and
Job's idea about this 7 was similar when he said : 'A warfare 8 is the life
of man upon the earth' (which I quoted at the beginning of this work)
so, too, there is a spiritual peace, namely when our passions are con-
trolled by reason, and our lower nature is not at war with the higher.
But even the ordinary peace of the world generally is eagerly desired
and highly acceptable. Of this the peerless poet sang, when he said:
Again for Latium 9 who the golden age shall usher in,
O'er fields that once were Saturn's realm . . .
This is the peace which a gloss p states is banished far from us by six
circumstances.
1 [The Vulgate, which Belli quotes, has iustitia (justice) in this and the next passage cited. The King
James Version reads righteousness, the Douay Version, justice. ED.]
a [>#, i,e. Isaias. TR.] 3 [For praecwi read prafcini.TSi.] 4 [autor, i.e. auctor. TR.]
5 [virtus affectumque diaritatis. As a matter of fact, St. Thomas calls peace the virtus and effectum
of charity. The Latin text may contain a misprint here.-^ED.]
6 Reading wbis . . . wstris for nobis . . . nostris. TR.] i [For qua read quo. In.]
8 [mlitia. This correspond to the marginal reading in the Kin% James Version (Job t vii. i), and
to the text of the Vulgate (t&j'd.). TR.] [For guae rursus latro read qm rursus Laiio. TR.]
Chap. I]
and Warfare
279
8 However, peace is assured and made secure, if a sovereign is pre-
pared for war a principle which our Lord approves when He says: a
'When a strong man armed keepeth his palace, his goods 1 are in peace'.
And it is a common saying: If you desire peace, prepare for war.'
This idea is expressed by Vegetius b also in the following words: 'He
who wants peace should make ready for war.'
9 Moreover, war is preferable to a doubtful peace, according to
Cornelius Tacitus ; c2 and so Cicero d also said in a passage previously cited
( a peace that will involve no insincerity 3 ). And with this accords the
high-spirited reply of the Privernian in the Roman Senate: 'If you
grant us a righteous peace', said he, c we will keep it forever, but a bad
peace we shall not keep long.' 6
Baldus 1 also declared that peace ought to be real and enduring; and
if insincerity lurks in it, it is not peace, but deceit. But as to what he
adds from St. Augustine, to the effect that as long as strife continues
there is no real peace this refers to peace of the soul.
It is not at all strange, therefore, that our rulers so frequently
renew compacts, truces, armistices, peace, and war; for it is under the
stern stress of necessity (particularly emptiness of the treasury) that
they have recourse to peace not because of peace in the soul or pity
for the masses, nor in fine because of reverence and fear of God. No
wonder then that when the treasury is refilled, and, so to speak, the
cause is eliminated, the effect (i.e. peace) disappears also.
Baldus 8 sang a very encomium upon peace. To take up, then,
[io]some points that bear upon this subject, [122] I ask, first: What is
peace ? Rejecting the definition of Geoffrey, Bartolus declares that
peace is nothing else than an agreement by the terms of which a war
already begun is brought to an end. See his statement. 11
In another passage Baldus 1 declared that peace is nothing else
than the terms of a peace pact. Perhaps, however, the definition of
Geoffrey is preferable; for there can be peace apart from pacts and
terms, as when a sovereign, after subduing the enemy and at times
exterminating the entire royal family, grants peace to a country, as did
Alexander, the Macedonian, after subduing Darius; so the Turks, after
taking Constantinople.
Romanus, 1 too, had much to say regarding peace; so Giovanni da
Legnano. k But there is a different bearing in lie remark of Augustine 1
that peace is nothing else than duly established concord.
Livy reviews all the kinds of compacts by which kings and peoples
unite in friendship: (l) When conditions are imposed upon the van-
quished; for when everything has been surrendered to one who 3 has
been victorious in the field, his is the right and power to determine
ii
1 [For omnidque read omnia qiw. TR.
a [The quotation is inexact. TkJ
21.]
^Rei MiU-
tans Instiluta,
III, praef.
xlix, 2,]
* [On Duties, 1.
35-]
6 [Livy, VIII.
xxi.4.]
1 On Feuds,
the beginning;
last words.
eTitu.DePace
Constantiae, at
the end, no. 3.
beginning: Ad
dedwationsm,
l Cmalia,
Bk.II,i9S,
beginning:
Laudarcvoset
col. 2, the
words pros*
terea date*
passim.
lOn&edty
ofGodXll.
3 [For qu. read fwz. TR.]
280
A Treatise on Military Matters
[Part X
* [XXXIV.
Ivii. 7 ff.]
Pace Constan-
^,4,110.38.
no. 82.
no. 85.
what he wants taken from the conquered, and what they may retain:
(2) When parties well matched in a war enter upon peace and
friendship on equal terms; for then possessions are claimed and sur-
rendered according to agreement; and if the ownership of anything
has been confused by the war, adjustment is reached on the basis of
equity, 1 or in accord with the terms 2 of earlier law, or with regard to
the convenience of both parties: (3) When those who have never been
enemies agree to inaugurate friendship by a friendly compact; in which
case neither party imposes terms nor accepts them, for that is the proce-
dure between victor and vanquished. So Livy. a
Not unlike the above-mentioned first class was the peace which
the Emperor Charles imposed upon the Duke of Saxony 3 and the other
Germans who sided with the Duke. The second variety is illustrated
by the oft-repeated pacts of the same Charles with Francis, King of
France, and also with Henry, from 1526 up to 1558 the year in which
I am writing this, and in which peace has been made between Philip,
King of Spain, and Henry, the above-mentioned King of France, with
restitution to Emmanuel Philibert, Duke of Savoy, of the cities and
territories which he had lost in the war, the French, however, retaining
five cities in the Piedmont district, namely Turin, Chieri, Villanova,
Pinerolo, and Chivasso, which are to be restored after the lapse of
three years; and with a discussion and elucidation meanwhile of the
rights and claims which the aforementioned King of France also
advances against the Duke himself and the cities held by him a peace
which may it please God to make lasting! 4
Next I raise the question: In the same manner that war is done 12
away with by peace, are all concomitants of a war likewise disposed of?
Baldus* states this to be the case. And again he so implies ; c [122'] for he
holds that sentences issued against rebels on the score of rebellion and
war are counted as cancelled when peace has come; but not if the sen-
tences have a different basis (e.g. in a case of debt, or other civil action).
Hence I infer that the exiles from Milan, who previous to the war
had left that place because of crimes (being banished, as we commonly [13]
say), were not rated as restored to their country, despite the fact that, in
the compact and peace, there was a general amnesty for rebels unless
the scope of the agreement suggests otherwise.
Baldus* infers also that estates lost on account of war, and which a
person previously owned, 5 ought to be restored to the original owners 14
whea the war is over; and if these selfsame persons meanwhile 6 have
1 [Simul; reading doubtful. TR.]
z [Text of the original doubtful. Some editors insert formula after dc. Tfc,]
3 [John Frederick L ED,]
4 [Apparently Belli is here describing the treaty of Gateau Cambrfeis; in which event, the date
1558 should read 1559. ED J
* [For earn possidffant read id possidebat.T:*.] 6 [For itiiarinl read interim. TR.]
Chap. I]
and Warfare
281
reoccupied the estates, they should be protected in their possession; so,
if a claimant institutes action for the spoil, he will be met by the excep-
15 tion dolo fetis. This Baldus a repeats.
Angelus* says also that, when peace has come, there should be
restored to the former owners, not only the immovables seized in the
war, but the movables also. However, he is speaking of cases when it
16 has been so provided in the agreement.
And with the statement of Baldus above cited there is agreement
on the part of de Afflictis,* who holds that peace has the effect, not
merely of a simple indulgence, but of a restoration in full even to the
loss of a third party to whom perhaps the property has been transferred.
17 In support of this he cites Fulgosius 6 and Alexander. 1
My opinion is that, above all else, the terms and the phrasing of
a pact should be scrutinized; for they have the effect of law. Thus : (l)
They may be so generous in scope that they can be made to cover every-
18 thing, and in that case everything will be included, even movables, as
Angelus said; for agreements must be honoured: 8 or (2) Mere peace is
made, with pardon for rebels, but with nothing said of the restoration
of property; and then I do not think that the rebels recover their
goods, especially such goods as have been transferred to a third party;
for the sovereign who transferred them is bound by the law of contract. 11
So Baldus, 1 who quotes Cino to the effect that this verdict was rendered
at Bologna.
(There is support in what Bartolus 3 said in regard to very similar
situations, where he distinguishes between a simple indulgence and
one with a specification, and between a qualified restoration and an
absolute or unqualified restoration. For a qualified restoration is limited
by its specifications, whereas the unqualified includes everything. As
for the difference between indulgence and restoration, see a gloss.*)
Angelus, 1 however, comments baldly and without qualification,
saying that a restoration granted by a ruler is never made to include
alienated property in fact, not even income from such property
which the fiscus has previously absorbed. [123] And for that reason he
warns exiles to be careful, and to see to it that there be added in the
articles of the compact a phrase which covers even goods that have been
alienated. This, he says, was done in the peace made between the
Perugians and the Apostolic See.
But, taking up this subject 1 more comprehensively, I believe that
we should distinguish along the lines recognized by the Doctors; thus:
(l) We are dealing with acquittal by a judge, though a person has
actually committed a wrong; then acquittal avails nothing. So de
AfHictis, m who here cites d'lsernia, the Utter declaring 11 that if the
sovereign has granted an indulgence to the first-born son of a vassal, who
;$?., 20,
no. 92.
* On Code
VIII. 1.19.
*Titu.DePace
Constantiae t
4-
d On Feuds,
chap, i, col. ii.
c Consilium
163.
1 Consilia,
Bk. II, 190
and 216.
i, 6;L.xvii.
23-
with its sub-
ject-matter.
* On Dig.
XXVHL ii.
29* 5-
li. 13, col. 3,
the words tt
pro huius.
i On Dig.
XXVIII. ii.
29, 5, las*
col., no. 2.
Bk. II. mv,
chap.i,3,
gloss 3, no. 90.
1569.64
1 [i.e. of reinstatement
00
col. 5, Item
quid si
"pnncfps.
282
A Treatise on Military Matters
[PartX
25, etc. 1
b col. 2.
viii. 6.
d Glossator on
Supported also
by the rulings
in Code, IX.
li. 12.
li.13, cols.
On Dig,
XXVIILii.
29* 5-
Ii. 13, col, 3.
.
iL
has committed a felony, it is the same as if the son had not committed
the crime, and he will therefore succeed in the fief, to the exclusion of a
brother of his. But the case would be different, he says, if the son had
been cleared by a judge. He cites Digest, XXIII. ii, 43, 12 ('because
the law recognizes stigma in the act, and not in the verdict'), and
XLIX. xvi. 4, 6. And that there is a difference between the powers
of sovereign and judge is shown by Code, III. iv. I.
But whatever the Doctors may say, I should think that if a judge,
after trying a case between the fiscus and a vassal, should acquit the
defendant, the latter will be secure as much so as though he had been
acquitted by the sovereign. For a verdict has the force of law, a especially
in criminal cases; so Baldus there.*
And there is no difficulty with the rulings in Digest, XXIII. ii. 43,
12, the case there being far different. For the mere fact of detection
imposes the brand of adultery; and it is not strange that acquittal
avails nothing. The same is true also of Digest, XLIX. xvi. 4, 6. For
dismissal itself brings disgrace, without the formality of a sentence; and
it is no wonder that acquittal helps not at all.
I should say the same, too, in any other case whatsoever where the
law immediately and automatically prescribes a penalty for crime, e.g.
the crime of treason. For in these cases acquittal at the hands of a
judge would not alter the course of the law. (As for my mention of
the crime of treason, you will find a fuller discussion in the following
chapter, under number 76.) Or:
(2) We are speaking of indulgence; and thereby I mean remission 19
for crime and guilt, and, in consequence, of its punishment. But
property is not restored.* 1 There is exception, if some more generous
provision is made in the indulgence; for that should be observed. 6 Or:
(3) There is restoration, and thus something more than simple 20
indulgence; and then property is included, if it has not yet passed 2 into
the hands of a third party. If, however, it has been so transferred, the 21
reverse is true. So Bartolus; 1 and this is in general 3 the view of all. 8
But
(a) There is a restriction, in that the above rule does not apply to a
person at whose expense the fiscus is found to have been enriched; e.g.
if it has disposed of the property by sale; for then it will repay the
price. [123'] So Bartolus argues ; h and he uses this idea also against the
view I have quoted above (citing Angelus) 1 regarding income absorbed
by the fiscus before the transfer of the property to a third party. Yet
he is talking of actual reinstatement; hence perhaps he is wrong.
(b) Another qualification is: unless the third party to whom the
property was transferred has secured it by legal process based on the
verdict of 'guilty' pronounced in regard to die original crime. For
* [Si. } .e. sMBfaft TnJ 3 [For sit wad fl'nf. TR.] 3 [cois, i,e. comwnis. TR.]
Chap. I]
and Warfare
283
alienation which rests directly upon a sentence is cancelled, if the
sentence is reversed, even if reversed by restoration. So Angelas said, a
the statement originating with Cino on Digest XXVIII. ii. 29, 5, as
Alexander there 1 * reports. It is strongly supported by Digest, XXXVII.
xiv, 21 ; and there is a very similar passage in Digest, XXXVIII. ii. 3, 7.
Moreover, Imolensis is not in opposition on this point, though on the last
named passage he says that in Digest, XXXVIL xiv. 21, there was a sort
of cessation, rather than a transfer that is to say, by virtue of the
sentence through which the master was sent into exile it seems rather
that the man was eliminated than that a right was acquired by the
freedman; and this cannot be denied.
And perhaps the same thing could be said touching another ques-
tion regarding the allotment made by verdict to the heirs of a murdered
man (let us say, to cover damages), in case the slayer afterwards secures
restoration howsoever much Baldus and Alexander may here dissent.
For though that allotment is assigned in view of loss suffered by the
injured party, still it might be said that the law refuses you its help
but not your own; for the restoration annuls the sentence and its whole
effect, but the heir still has unimpaired the right to bring action ad
interesse.
And the logic of this is that when such a claim is awarded a third
party through strict application of the civil law, even in the face of
natural law (which never deprives a person of his property because of
crime), it is natural that the Emperor may temper this inflexibility.
This explanation was introduced in the present connexion by Aegidius
Bellamera. c
Another distinction might be made according as: (i) the allotment
assigned by the verdict to the injured party was due to him on other
grounds, e.g. by statute, or (2) the judge made the allotment according
to his sense of fairness. Thus, in the first case, restoration of the criminal
will not revoke the allotment by verdict, according to the view of
Bartolus. He is followed by the Doctors/ who conclude that if the
Emperor forgives a crime, it is not counted that the penalty is remitted
to the loss of a third party, whose claim was based upon something
other than the sentence; as in the case of the law cited, 6 where the
penalty or fine was adjudged to the patron on the basis of the common
law. But in the second case, where the claim of the third party rests
upon the sentence only, forgiveness of the crime will work to his dis-
advantage, according to the rule of Angelus above cited. 1 It would be
difficult, however, and perhaps even dangerous, to depart from the
received and commonly accepted view.
(c] There is a third exception, namely if there is an express provision
in the restoration. Whence Alexander 8 [124] warns the advocate to take
great care to select properly the terms of reinstatement.
* On Dig. I
* Under no. 19,
the words quod
Dear. 744,
beginning:
His supposiiis,
atthe^
beginning.
* On Code II.
ii.2.
xiv. 21.]
tOnDig,
XXVIII. ii.
29* 5-
284
A Treatise on Military Matters
[PartX
a ConsUium
525, no. 8.
b ConsUium
407, no. 17.
c On Decretals
Ui. 7 .
d According to
FelinusO*
Decretals, I.
sxxiii. 8.
469, Dub. 2.
* OK Authentic
following Code
I. v. 19 (7<fem
estdeNcsio-
riams).
li. 13, last col.
but one, the
words item
mdetur*
* /teas. 744.
However, doubt is cast on both the above reservations, in view of
what Decio a said in criticism of the rule of Cino and Angelus, making
many citations to the contrary. But, in the case under his consideration,
restoration was effected through a subordinate, whose authority is less.
But as regards a sovereign, I think that we should make a distinction
according as it is a question of intent or of power.
Under the first head, either the alienation of property was made
directly on the basis of the sentence, and then I think that we should
hold with Cino and Angelus; or it was made by contract (even though
for a nominal consideration), and then I think that the goods ought not
to be restored.
In the other case, the intent of the sovereign is clear, and the
question is whether he had the power to restore even property that had
been alienated. And again I shall subdivide, according as the alienation
was effected on the basis of a contract for a nominal or for an actual
consideration. In the first case, the goods will be recovered; in the
other, what Decio said b will hold, namely that they will not be restored
a view which he supports at length. But, to this last, add the quali-
fication: unless the sovereign orders restoration on grounds having to
do with the public weal, and especially if the property has been dis-
posed of 1 to a subject, I refer you to a lengthy discussion of this
matter by Felinus.
(d) There is exception, in the fourth place, when, though it is not
explicitly provided in the reinstatement that property also is included,
there yet is added some pregnant expression which so implies (e.g. the
insertion of the word 'fully', or the like d ).
As to my statement above that peace restores everything to its
original condition (so that what war has taken away is restored forthwith
by peace), Romanus dissents at one point. For, says he, if the people of
Pisa and of Lucca by courtesy were citizens mutually each of the others 3
state, and war should break out between them, terminating the privi-
lege, the coming of peace would not re-establish that community. So
he states in his Consilia* where you may consult his arguments.
Further, in regard to my remark above that the income derived
from property during the continuance of war is not to be paid back when
peace comes, even though it is necessary to restore the property itself,
this view is upheld byAlbericus de Rosate and Saliceto; f also by Baldus.*
I ask: What of the claims of indebtedness which exiles chance to 22
hold in the state ? And suppose:
(i) They were cancelled at the start, let us say because it was
ordered by statute that all rights and actions of the exiles lapse; and
in that case the claims certainly will regain their validity through the
coming of peace and restoration. So Aegidius Bellamera. 11
1 [Reading distrada for disiricta. TR.]
Chap. I]
and Warfare
28 5
(2) They were transferred to the fiscus; and then distinction must
be made between indulgence and restoration, as pointed out above.
(3) They were surrendered or presented to others, who realized
upon them; and the question is raised whether the collector and
beneficiary is bound to surrender his collections. And, in addition to
what has been said above with closely approximate or exact bearing on
this question, the exact terms of the pact should be scrutinized carefully.
For as I have already said [124'] these latter must be regarded in the
light of law. And unless they are very wide and general, they do not
cover this case.
But if we raise the question whether a debtor may be called upon
for payment a second time; if we suppose that when the claim for
collection arising through the war vras settled, the debtor was already
in arrears, he will be subject to a second demand. And he should take
to himself 1 the blame for having to pay twice; for that account would
not have been made over to a second party, if he had himself settled
with the original creditor at the proper time. His fault, therefore,
ought not to work injury to another.
Suppose, on the other hand, that the debtor was not in arrears; and
then he will be secure, collection having been made to the loss of the
creditor. See discussion at length by de Afflictis. a
This does not fit, however, with the remarks of Giovanni d'Andrea, b
who says that Homobonus, a Doctor of Cremona, argued the following
question: War broke out between the people of Cremona and Parma,
and the commune of Cremona collected from one of its citizens a debt
owed to a citizen of Parma. Query; Was the man secure from his
creditor ? He decided for the negative, citing from the Digest,* wherein
it is stated that injury inflicted by a superior does not excuse against
the claim of a third party. And, says he, there is no help in the law of
war; for these warring factions were not genuine 'enemies'.
I hold that the other view is sounder; for I do not think that the
assumption of this Homobonus is valid. For, supposing that those
states were free at that time, each had the right to declare war, as I
pointed out at the beginning of this work; so his reasoning is not
sound: The Roman people did not declare the war; therefore they
are 2 not enemies. 7
[23] For Roman law did not introduce wars and the status of 'enemy' ;
rather, these conditions had arisen out of the law of nations long before
the foundation of Rome, as is said in Digest, I. i. 5, where Albericus
indicates assent in this connexion. 3 Therefore, what belonged to the
enemy could be seized and conveyed to the fiscus; for the law of war
so allows, as was shown above in detail in its place.
24 Further, as for the judgement of the above-mentioned Doctor that
1 [For sibiqua read sibique*-* Ta. a [For smt read omL. ED.] 3 [ter, i.e. termms. Taj
* Deas. 250,
beginning:
RexAlphonsus.
Durandus, on
tit. De Oblig.
etSollNunc
aliqua,w
addit.
Sccundum
Albcr.Gd.
c XXX.i,i;
XXI.il 51 j
IV.ii. 3 , a t
end;XLVII,
x.32*
286 A Treatise on Military Matters [Part X
the states in question were not enemies to one another in view of the
definition of that term (for which see Digest^ XLIX. xv. 24 and L. xvi.
1 1 8), but that they were nevertheless strangers, so to speak, and in the
same category as peoples with whom there is no treaty or friendship
wherefore he falls into doubt about his own decision (inasmuch as
between strangers enslavement is allowed) and leaves the point there
undecided this seems to me more absurd than that other statement
of his which precedes. For it is inconceivable that two states, neigh-
bouring and adjoining for so many generations in the past, should
never have entered also into some association [125] 1 of hospitality,
friendship, peace, and marriage especially as both were colonies of
the Romans.
It does not follow, therefore, that if they quarrel, 2 or even if they
have recourse to arms and war (even" granting that they are not
'enemies' one to the other, as he assumes, but which I do not think is
true, if we take for granted the authorization and justice of the war)
it does not follow, I say: They are not enemies; therefore they are
strangers. 3
For strangers are those who never at any time have been associated 25
in friendship or by any treaty, being unknown either through war
Dig. XLIX. or peace, a such as were those far away nations to the Portuguese and
xv. 5, 2. Spaniards, separated by the long voyage across the Ocean.
CHAPTER II
WHO ARE INCLUDED IN PEACE PACTS
SYNOPSIS
1 Whether peace includes the adherents i 9 Adherents should be defended even -with
of the contracting parties, i force of arms; and see no. 32.
2 Peace, like an agreement, is a matter of I 10 Adherents are assumed to have reserved
strict law. i the rights of their own lord.
3 Whether adherents are included in a II A vassal may 4 give allegiance to another
declaration of war. It is ruled that they ; lord, if he can 4 not otherwise hold his
are not, with refutation of the contrary i own against his enemies,
opinion of Baldus. j 12 One who gives allegiance to an enemy of
4, 'Adherents' variously defined. - his lord, loses his fief.
5 Adherents little different from vassals. , 13 He who blazons upon his castle the
6 Who are called 'adherents'. j insignia of a hostile lord, loses his
7 Adherence 3 does not establish jurisdic- j fief.
tion over the adherent.
8 Adherents are under protection, but not
under jurisdiction.
14 Whether a servant who violates a peace
makes his lord liable to the penalty for
breach of the peace.
1 [For p, 225 read p. 125. ED.] 2 [For dissentiam read dissmtiaia.'
3 [For adhaerentia.m read adhaer&itia^TB..] * \pot i.e.
Chap. II]
and Warfare
287
15 A principal is under a different obliga-
tion from a follower or adherent. !
1 6 A borrower is not responsible for acci- ,
dents.
17 Those who disclose plans to the enemy
are traitors.
1 8 Whether a person guilty of collusion
should enjoy the benefits of peace.
19 The commanding general cannot make
peace.
20 Whether the losses of war may be
remitted in the making of peace.
21 Losses remitted in the making of peace
are not remitted in the sight of God.
22 Soldiers who plunder in an unjust war
are not excused in the sight of God
because of compacts.
23 Holdings taken from friends for the
purpose of defence should be restored
to them when the war is over.
24 Things taken by one's own party, even
though lost to the enemy > 1 must be
made good by those who took them.
25 A lord may 2 fortify a stronghold of a
vassal. But 3 he should turn it over to
the vassal without remuneration at the
end of the war.
26 [125'] Forts may be constructed along
the frontiers, even after peace has been
made.
27 A new development does not fall within
the scope of old compacts.
28 Peace is not counted 4 as violated by an
unimportant act; nor even for grave
suspicion should it be broken; and see
no. 39.
29 A person does not break the peace who
appropriates a profit accruing from
something of his.
30 Peace terms are binding upon a suc-
cessor.
31 Whether a vassal may be transferred to
another in the interests of peace.
32 A king does not give away parts of his
realm against the will of the inhabit-
ants, and without consulting the nobles.
33 Whether peace in the interest of
adherents includes also those who later
enter that status.
34 It is the initial state that is regarded.
1 [Reading doubtful. Transpose aamssa and nwt.
3 [in, i.e. tamen. TX]
* [See, however, the text here. TR.]
35 Peace is not violated if a new occasion
provokes new injury.
36 A banished person is not immune from
injury, though peace has been made
with him. But understand this with
the reservation here noted.
37 Whether peace is violated by adultery or
theft; see also under no. 42, near the
beginning, and no. 53.
38 WTiether, in case of doubt, an injury is
counted as due to an earlier grievance
or to a new occasion.
39 Striking with the open hand or fist is a
worse insult than a wound; and see
no. 65.
40 An injury is considered in the light of
many circumstances.
41 He is responsible for a quarrel who stirs
up wrath.
42 He who is provoked to action by injury
is not brought to trial for injury.
43 Whether peace is violated through the
act of an adherent who had not yet
ratified it,
44 The injured party does not violate a
peace, if he injures the offender;
45 Even though the phrase be added:
'while the pact remains inviolate'; and
see below, no. 51.
46 Ratification should not be forestalled by
the adversary through headlong haste.
47 Whether the fine is paid to the injured
person, or to all concerned.
48 He who makes peace for himself and his
adherents is bound to arrange and see
to it that they observe it.
49 Breach of peace on the part of one indi-
vidual does not prevent others of that
party from the enjoyment of peace;
and see under no. 53.
50 Peace between two towns is restricted to
the people of that generation.
51 An injured party who retaliates is not
Held for breach 5 of peace, even though
there be added the phrase: Vhile the
pact remains inviolate', or the words:
*the penalty to be incurred as often as*.
52 The above phrases work only to tlie dis-
advantage of the aggressor. However,
see someargumentshere to the contrary.
* \pst, ie. priest. TR.]
[For/octo read/rarto. TR.]
288
A Treatise on Military Matters
[PartX
53 Adultery violates peace, if the phrasing
is general.
54 Whether, if peace proceeds 1 from
statute, it is necessary to secure peace
at the hands of all the heirs.
55 How the fine agreed upon is distributed.
56 Whether a guardian makes peace for a
ward.
57 Whether a son, not the heir, may mate
peace that will avail under a statute
which remits the penalty, if peace is
secured at the hands of the heir.
58 A daughter is able to make peace; and
see under no. 64.
59 [126] Afather can make peace for injury
done to a son.
60 On the other hand, whether a son may
make peace for injury done to his father,
the latter being yet alive.
6 1 The abbot makes peace for injury done
to a monk.
62 The bishop makes peace for an injured
member of the clergy.
63 Whether syndics make peace for injury
to a state.
64 Whether a bastard prosecutes, and even
makes peace, for the murder of his
father.
65 Whether peace can be made on such
terms that the offending party sur-
renders himself to the injured person
at his discretion.
66 What the nature of the discretion and
the punishment should be in this case.
67 One who throws himself upon the
generosity of another may not sutler
bodily injury;
68 Likewise, if he puts himself at another's
disposition;
69 Otherwise he should be restored to his
earlier status.
70 Discretion assumes the standard of
judgement of a good man.
71 Parties may be compelled to make peace.
72 The Pope forces sovereigns to make
peace.
73 Whether amnesty granted to subjects
applies also to indirect subjects, i.e.
persons who are subject to a vassal of
the sovereign.
74 Peace with reinstatement of rebels
includes those deceased also.
1 [Reading prodti for prodest* ED.]
75 If by treaty the enemy are bound to
leave their camp and withdraw from a
country, the agreement does not affect
those who own property there by
personal right.
76 Whether the declaration of a sovereign
is to be acted upon to the disadvantage
of a third party.
77 Whether a rebel, after suffering confisca-
tion of goods without a trial, may
rightly, on the manifesto of his
sovereign, recover his property. Here
there is a lengthy examination of
Decio's Consilia, 410 and 544.
78 A condemnatory instrument may not be
executed regarding a crime.
79 The affirmation of a ruler is final; with
the qualification here.
80 A notorious rebel may be plundered and
punished without any formal sentence.
8 1 The regulations of the Clementine
Constitutions, II. vii. I, apply only to
the supreme ruler.
82 An imperial vicegerent ranks below the
Emperor.
83 A man who secures the property of a rebel
may ask that the latter be declared
such after due investigation. The other
may contest the case, and the argu-
ments of both will be given a hearing.
84 A rebel (even though not openly such)
may be killed with impunity 2 ; and, after
the killing, its justification or non-
justification will be taken up.
85 Whether agreements not to receive
exiles are limited to the time being, or
whether they include also exiles of a
later date;
86 Likewise, whether they include an exile
who is reinstated and then banished
again.
87 Property alienated with consent of the
creditor and then recovered does not
return to the mortgaged state, even
though it is again going to be used as a
security. And the reason is here stated.
88 A person who absents himself with per-
mission of the creditor, on his return
falls again under the obligation not to
leave.
89 [126'] The words *I entrust* give into
custody.
[For impuneo ccidi read impun& ocddi. ED.]
Chap. II]
and Warfare
289
90 A custodian performs the acts which are
essential to custody.
91 Whether the custodian of a stronghold
has judicial and executive powers.
92 A captain of the guard is allowed the ;
right of moderate punishment. But
more serious cases he refers to his
superior.
93 To what extent the custodian of a lost
stronghold is liable.
94 A custodian should not cease to be what
he is.
95 In the case of the Emperor all punish-
ments are discretionary.
96 Sleep does not excuse at times even from
the death penalty.
97 A hired custodian is liable even for loss
that is unavoidable.
98 A custodian substituting another who
loses the post is excused if he has
substituted a noble; not otherwise.
99 Watchfulness is a poor protection
against overwhelming force.
100 When fault precedes disaster, the latter
is not excused. 1
101 A custodian is not under obligation to
effect the impossible; and see no. 102,
at the end, and no. 109,
102 A custodian is held liable even in the
face of overwhelming force, when he
has accepted a post to be guarded in
time of war.
103 A hired custodian is held liable for
unavoidable 2 losses.
104 The custodian even of a seized strong-
hold should restore it to the person
from whom he received it and not to
the actual owner, even the Pope's
orders notwithstanding.
105 Those who surrender strongholds, even
when they are not able to make
resistance, do wrong to accept money.
1 06 A commander of a stronghold should
not even parley about surrender.
107 The bondsman of a commander of a
stronghold is liable ad quanti
interest, but not for the fine agreed
upon in the bond.
1 08 Likewise he is not liable, if the com-
mander has betrayed the post; at
any rate not to corporal punishment. 3
109 A garrison commander who allows the
enemy to plunder when he could
prevent it is heavily punished.
no Castle commanders should not flee at
the sound of the trumpet.
in After peace is made, one party kills a
man of the other, and pillages his
home. Is the penalty agreed upon
twice incurred ? Observe a distinction.
112 Peace is a unity; not a separate peace
for each person.
113 Theft is not consummated upon an
inheritance that is not yet taken up.
114 An inheritance not yet taken up is
exposed to violence and underhand
practice, though not to theft.
115 Under the Aquilian Law also action
is granted for loss inflicted before
an inheritance is taken up.
1 1 6 Reason why action for theft is not
given, 4 even after the inheritance is
taken up. A new explanation 5 given
here, in addition to others.
1 17 Newinterpretationof>itt,XLI.iii.35.
118 Whether a person who is liable to the
penalty for breaking a peace is liable
also to penalty as an accessory.
119 An individual cannot be both principal
and accessory to the same act.
120 When several wrongs coalesce.
121 A person giving aid to two is liable only
for helping one.
1 22 [1 27] Ignorance at times excuses crime.
123 When purpose and intent are con-
sidered in extenuating wrongs,
124 Injury should be given 6 immediate
cognizance.
125 Injury is assumed to have been for-
given, if signs of amity follow.
126 W T hat the signs of reconciliation are.
127 Whether penitential confession is evi-
dence of forgiveness of injury.
128 Duelling is frowned on by the law.
129 Duelling is a madness at variance with
all humanity.
'Reading doubtful. See the text under this number. TR.]
"Jatolibu., i .e . fatalibus. TR.]
Before corporalem insert ad fpoenam]. TR.]
4 [For datur read detur. TR.]
5 [Insert novus intelterttts. TR..]
1569*64
[For revocare read revocari* TR.]
P p
2QO
A Treatise on Military Matters
[PartX
On Sex II.
iv. 2, at the
b On Decretals
I, v. i, col. 8,
the words ex
-praedictis.
In first addit.
to Bartolus,
vii. 18, i,
at end.
-43-
Consilia,
Bk.II.i95,
col. 4, the
words #<Z ut
dictum est.
i-43-
t Col. 13, the
words rf n<?.
130 The duel should be the last recourse,
131 General usage condones duelling.
132 Duelling even to vindicate innocence
is odious to the laws.
133 Custom does not excuse duellists.
134 Evidences of reconciliation should be
definite and conclusive.
135 Doubtful evidence is not sufiicient.
136 Digest, XXVIII. ii. 23, interpreted
otherwise than by other Doctors.
137 Adoption of one's own son, who has
been emancipated and disinherited,
does not cancel the disinheritance.
See explanation here.
I ASK, further: When peace has been made between the chief i
sponsors of a war (e.g. between the very powerful kings of Spain and
France), does this include their subjects, adherents, friends, and allies ?
And that it does not include allies is the comment of Geminianus and
de Franchis ; a and with this Panormitanus b agrees. Alexander takes the
other view, and cites Decretals, I. v. I ; so Innocent and Giovanni
d ? Andrea on Sext, II. xiv. 2. 1
Angelus, a however, makes a distinction : Either the terms of peace
are drawn up in the abstract, and adherents are included; or they are
drawn up with reference to individuals, and then adherents are not
included (particularly if a provision is added of such a character as not
to allow of extension) unless in this last case the interests of the
principal cannot be conserved without including them.
Moreover, Baldus, 6 too, says that peace is a matter of strict law, 2
like the contract covering agreement; and so he argues that what is
omitted ought to be treated as omitted. Therefore it is the safer plan
to have precise terms, [127'] and to make definite and specific mention
of adherents. This was stated by Angelus, f and it is implied in the
remarks of Innocent on Decretals I. v. I, as Panormitanus there
records, lauding the good faith of the Apostolic See, which is not in the
habit of making peace, or negotiating it, without including its
adherents. And he there assumes that those do wrong and act in bad
faith who do not include them.
Yet in the year 1544 we witnessed a peace made between the
Emperor Charles and Francis, King of France, in which there was no
mention of Henry, King of England, then an ally of Charles. But as
the Emperor was a man of steadfast honour, we must assume that this
was done with Henry's consent. Or, perhaps, each of the kings was a
principal in the war, and each at his own charges had declared war upon
France. And see what I have said above in Part II, chap, xi, no. 3.
And, in view of what I have just set down, there is grave doubt as 3
to the correctness of the statement of Baldus on Code III. xxxiv. 2, 6
where he concludes that when war is declared upon a sovereign, it is
counted as declared also against all his associates and helpers (this he
1 [Pope Innocent IV is the author of this canon, 'dot. Lugd. XVI. Kal Au%. A. III.
(Note to Richter-Friedbeig edition of the Decretalium CoUectiones, Leipzig, 1881.) The collection
known as tiber Sextus Decretalium, here referred to as ,Stf, was not made until 1298, during the reign
of Boniface VIII. ED,]
Chap. II]
and Warfare
291
states without comment as is his wont, and he is followed by Jacobinus
de Sancto-Georgio a ). For since they are not included in a peace (which
4. is a favourable category, and subject to generous interpretation), much
less will an unfavourable action be extended so as to include them.
Perhaps it would not be without point to distinguish between:
(1) The adherents of whom Felinus speaks, b i.e. those who assist
the principal with service, counsel, and goodwill, e.g. his retainers
and servants, in whose case the very etymology and content of the names
used to designate them look to their adherence to the principal, and
to their support, as it were, and their sustenance through him. (Here
applies the saying: 'But it is good for me to adhere (a&haerere) to [my]
God'; c and again: 'My soul hath stuck close (adbaesif) to thee ? . d ) And
it is reasonable to say that such are included both in war and in peace.
5 And perhaps the same could be said of permanent allies and adherents
of whom there is mention in a passage in Digest, XLIX. xv. 7, e.g.
those who give allegiance for their fiefs to greater lords or rulers. For
although they do not thus become subjects and vassals of the latter,
they lack little of it. And:
(2) The adherents who are equal at least in point of standing and
independence. 1 These I should think are not included, and that special
mention of them is required. Such is the implication of Digest, XLVIL
x. 15, 26. And when there are many equally responsible, even though
one is exempted, another is not cleared. Cf. also Digest, XLV. ii. 19.
This last-mentioned law is applied by Bartolus 6 to a similar
question concerning several persons who have made peace in company,
agreeing under penalty to give no [128] offence. If the penalty has been
incurred through the act of a single individual, does it fall upon all the
persons in that group I This question is discussed again by Bartolus ; f
6 and in regard to it I shall speak later.
Who are classed as adherents is explained by Angelus, and he
mentions also g followers, helpers, connexions, and captains. There are
exemptions also. On this see Felinus, h who, citing Angelus, says that
adherents are subjects (which must be understood as bringing them
within the first category above described by me).
Elsewhere 1 Felinus speaks again of adherents, saying that a person
who makes peace should bind himself for his retainers, associates,
adherents, and the like. So Baldus, 3 too. Bartolus* declared also that if
peace is made for assistants and helpers, it will include sons, grandsons,
and relatives, and also advisers and servants. Hence Baldus 1 adds that
if injury is done to an individual, it is reckoned as done to the whole
family and household.
1 But to get a clearer notion of this matter of adherence, it should
be observed, in the first place, that normally this sort of allegiance
1 [For Uberteltm read #&rtofc. T*.
a Inwstilwa,
tit. De
Adhaerentibuf,
no. 14*
b On Rubric,
Decretals,
I. xxxiv,
no. n.
c [Psalms,
Ixxii. 28.
(Douay ver-
sion)].
^[Psalms,
lxii.9. (Douay
version)].
q.a.
following
xxxix. 2
(Haectia),
qu. 13-
ca I, at the
beginning,
col. 2, the
words ex hoc
no.
* On Decretals
II. xiii. 12,
el. 2, col. 2, at
end, the words
w. ibi in cos
adhaerentes dt
causa.
1 On Rubric,
Decretals,
I. xxxiv,
declar. 5 .
I. iii, i, no. 6
(operator).
ill.
100 Cafe IX.
xiii. i, not. 5.
292
A Treatise on Military Matters
[PartX
a Consilia,
Bk. V,5o6
(In ires
marchioms).
b Consilia,
Bk. II, n
(Illud ajjeram
in medium},
under no. 31,
at end.
c Decretals, V.
xxxiii. 8.
* On Dig.,
Prima Const.,
at the begin-
ning, no. 7.
e On Decretals,
V. xxxiii. 8.
f Consilia,
no. 22, near
middle.
Blinder no. 15.
and under no,
42, the words
stat ergo vera
condusio.
1 Consilium
506, above
cited.
1 Ibid,, at end.
(DMabititr
an regis
maiestas).
%ans;Quisint
rebelles.
* On Decretals,
II. i. i.
* On Dig,
XLIX.xvi.5.
Consilium u
(above cited),
no. 19.
P On Feuds,
Bk.lv,
chap. i.
i Tractates
Feudorum,
4th main div.,
qu.i 5 .
* Consilia,
under no. 2
*0nl
, iv.
i.5jandon
XLVILix. 7 .
establishes no jurisdiction on the part of the person to whom one gives
adherence. So Baldus a and Andreas Siculus (called Barbazza),* who says 8
that people are not under the jurisdiction of the person to whom they
give adherence, but under his protection. He cites a passage in which this 9
is clearly shown ; c and he states that the lord must protect adherents with
force of arms, if need be. So Bartolus ; dl but understand this with thepro-
viso : if they are unjustly 2 attacked according to a gloss 6 and Barbazza/
The latter here makes another noteworthy remark, namely that, 10
in case of doubt, it is assumed that a man giving adherence has reserved -
the rights of his lord and superior. This Barbazza had already said, 8 and
farther down he repeats. 11
Moreover, Baldus says 1 that if it is shown that an ally or adherent
elects to become a subject, he compromises himself. Yet Baldus
recognizes a distinction: Either such a subjection approximates an
innominate contract, and then there will be no opportunity to with-
draw; or it is made simply, or as a simple prorogation, and then the
case is otherwise. You may consult him at greater length. 3
Again, Brunus k stated that a vassal of the Emperor, even without n
the latter's sanction, may give adherence and enter into a league or
alliance with, some king, in case he has powerful neighbours against
whom he cannot hold his own and the Emperor is far away [128'] and
unable conveniently to protect him. Brunus cites Bartolus 1 and
Baldus, m and adds, too, that such alliance does not entail jurisdiction
or subjection.
He says here also that if one adherent drives out another, the
sovereign may take a hand in the matter (but in a friendly way) and
restore and protect the persons expelled even to the point of using
armed force. For this he cites Raimondi. n
And he adds, finally, that if a person allied does not call upon
another ally for protection during a thousand years (because no
emergency has arisen), the claim has not for that reason lapsed.
Barbazza says, again, that if a man gives adherence to an enemy of 12
his lord, in point of law he forfeits his fief, because by reason of that very
act he is assumed to have become a traitor. And he declared also that
this is true, even though the hostility up to that time was covered and
hidden, but yet on the verge of breaking out. He cites Baldus ; p and
you will find the matter treated in full by Curtius. Q
Socini, r too, said that if a man has given adherence to an enemy 13
of his lord and caused the enemy's insignia and arms to be blazoned
upon his castle, he should be deprived of his fief.
Bartolus 8 may be consulted on the question whether, when peace 14
has been made between private parties, it is to be held that the peace
has been broken by the masters, if servants of the two parties get into
[ [For M. read Bar. TR.
2 [For iniusti read iniuste, T
Chap. II]
and Warfare
293
a broil. And I think that a distinction should be made: Either the
servant offends in connexion with business put into his hands by his
master, and then he involves the latter; or he offends in connexion
with extraneous activities and does not involve the master.
In such a case, however, I should think that the master was
bound, by virtue of the peace pact, to deliver up the servant for
judgement. So Bartolus, a who says that the master by producing the
servant clears himself. Otherwise, I think, he would hardly be
exonerated, unless he were to demonstrate that a new occasion for
quarrel had arisen a point which I shall treat at greater length later.
Though Baldus* claims that it is not taken for granted 1 that an act
is committed with the knowledge of the master, yet in view of the
agreement as to penalty which is usually attached to a peace pact, I
should hold that, on general principles, the master is liable to the penalty.
15 To touch on the point in passing, it makes a great difference
whether a person participated in an act in the character of leader (or
captain, as they say), or merely as an attendant (or follower) and
adherent; especially when loss has been wrongfully inflicted upon
some one, and the matter therefore has come up for settlement. For
the person who participated as a follower is liable for his own action
only; but he who has gathered and called together others is liable in
full, and for the acts of all. So Bartolus; and he makes application to
the case of a certain Count Albert, who gave assistance to exiles from
Bologna.
Baldus, d too, makes mention of this [129] count, arguing, however,
that he will be liable for the acts of all those whom he brought with
him. Thus you see that, from different points of view, one and the
same person may be regarded as a principal and as a follower. Alexan-
der, 6 too, treats this subject at length setting forth also the nature of
the office of 'captain', and the extent of its responsibility.
Principals are liable also in another way. For if any loss befalls
those whom they have called together, they must make this good,
unless the project was unlawful, as I have already pointed out in another
passage. So Bartolus/ This topic is fully treated by AntoniusdeButrio, 8
who adds that in the case even of those summoned to a just war, losses
are not made good to them by the person who raises the standard,
provided that they have followed him voluntarily (e.g. from a feeling
of duty, from courtesy, or because of kinship) i.e. if they have not
followed him as a matter of obligation, being bound thereto.
16 And here Antonms* adds one detail which to the uninitiated and
unlearned will seem unjust, namely that if I have loaned a horse or
anything else to a person setting out to battle or to some other venture,
he is not bound to reimburse me, in case he loses it ; for it belongs to the
- Ti.J
XLVIILxi, i.
*OH Code II
xix. 6.
c On Dig.
XLVIL viii.
& On Code VI.
i. i t col. 4, the
words sed
quaero qui
dicatur prin-
cipalis,
* Consitia,
Bk. 1, 103.
^ On Code
IX.xii.6.
s On. Decretals
II. xiii. 12,
el. i. col. 6,
the words
sextum
quaesitum.
294 A Treatise on Military Matters [Part X
nature of this contract that an accident happening to the thing loaned
without any fault of the borrower is set down to the loss of the lender,
whose business it was to take into account the possibility of this
happening,
In my own case, however, after I borrowed 1 a horse thus from a
friend, and on its return journey 2 it was captured by the enemy from
a servant of the lender, whom he had sent along with me to bring the
horse home, I paid him the price, not wishing to give an occasion
for criticism, and because, as the Apostle says, many things are lawful
[i Conn- which yet are not expedient. 5 But any one wishing to take advantage
Mans, vi. 12.] Q f ^ J aw ^ g u il t y O f no Wrong.
As for the above quotation from Baldus, to the effect that a peace
made for one's self, adherents, and assistants includes also connexions
and relatives, he seems to be in opposition to Bartolus and many others.
*>OZ%XLV. For Bartolus* states that a man who injures the brother of the person
1. 126, 2. ^^ ^QJJJ kg j ias mac [ e p eace j g not jj^k to ^ p ena ity for violation
or infraction of that peace.
We must distinguish, however, according as the peace agreement
was drawn up in broad or in specific terms. If it is specific and direct, it
includes no others than the contracting parties ; and the verdict of Barto-
lus will hold unless it should be shown that the brother was injured
as a result of the original quarrel (this particular is touched upon by
Atf. Alexander and others', and I shall take it up later in its place). But in the
previous case, i.e. if the phrasing is broad in scope, the other view holds.
Those who wish to learn more about adherents should consult
*D*Maerm- Jacobinus de Sancto-Georgio, d who, among the items culled from the
writings of others, treats of a point which I have decided to sift
thoroughly in the next following question; for it is pertinent to these
war-like times of ours, and, moreover, it is of frequent occurrence. For
many men (either with the idea of increasing their wealth, or of keeping
safe at home and looking after their interests), though they are of the
masculine gender (to use a grammatical turn), have chosen to be epicene. 3
[129'] My question, then, 4 concerns a certain nobleman who in point 17
of residence, bodily presence, and feudal oath was on the side of the
Emperor, but in the fashion of colluders helped the enemy to the
extent of his ability with advice, information, 5 and warnings.
These colluders side with both parties (or rather with the enemy,
as^is stated in Digest, XLVII. xv. i), and betraying the cause of their
.nLH. friends, help the opposing party; 6 of these it is said 'though in the
1 [For cmmodato read commodaiwns-Tb.] * [For regression read reeressu. TR.]
3 [i.e, their loyalty is divided. TR.]
4 [The translation is somewhat free in this and the following paragraph, in consequence of Belli's
1 IreUatime', u ' ' "' m ~^ ' " ~~ ' " r ' ^' ^
Chap. II]
and Warfare
295
b See Dig.
XLEX. xv. 26.
c On Feuds
BL I, 5,
chap, i, col. 6,
the words de
a Tract. Qui
Sint Rebelks,
the words
rebellis,
quaedam est
infdditas, and
item no.
body they seem to be with us, yet in intent and purpose they^are
against us', a and they are much worse enemies than those outside. on.i j z>w/.
There is a reference to them also in [Gratian's comment, Pars III, 3>1
II in] Decretum, II. xiii, 1. 1 : 'Like a mouse in the wallet, a serpent
in the bosom, or fire in the lap they requite those who shelter them.'
For it means nothing to be at home in the body, if in spirit a person is
estranged, and an outsider or enemy.* Such persons Baldus calls
traitors, saying: c a revealer of secrets is a traitor.' And Digest, III.
ii. 4. 5 shows also that they are under a stigma. Further, Bartolus d
calls them oath-breakers and rebels. And this is so manifest that I
think that they cannot find excuse in the court of their own conscience.
The above-mentioned noble, I say (I mean really a noble, and a
prominent man for there is also a less favourable interpretation of such
18 a word; so Catullus: 6 What would you? 2 Must you have notice 3 at
any cost ?') This man, then, during the progress of a war, helped the
enemy; and when, after the conclusion of peace, his guiltwas discovered,
with the idea of escaping prison and the penalty for his wrongdoing,
he cited the peace pact, in which was a general provision that pardon
be granted to rebels and to the abettors and followers of both parties.
Would this plea avail to help him ?
Consulted in this case of actual fact, Angelus 1 discusses the
question in detail, concluding that the man in question is included in
the pact, on the ground that he was really an adherent of the enemy,
as shown by his heinous crime in betraying his own country; so also on
the basis of many other arguments which he advances.
My notion is that, first of all, the articles of the pact should be
looked into, as I have already said many times; for they might ^be
drawn 4 upon such broad lines as to cover this case. But otherwise, i.e.
where there might be an ambiguity in the terms, I should think that a
judge would be safe in not allowing such a crime to go unpunished.
For in a doubtful matter, the interpretation is unfavourable to the
party who gets into difficulty because of loose phrasing;* and again
because, when a crime is manifest and inexcusable, even in a matter
doubtful in point of law the preferable course is to safeguard the public
weal and this principle can be applied even to punishments, according
to Dynus. h
Such crimes, therefore, should be avoided by all men, and
especially by nobles (whose standards should be higher and holier),
[130] lest they imperil their whole property, their reputation,^ their
lives, and in fine their very souls. For such action is not lawful in the
sight of God, nor unpunished in the courts of men. In fact they should
' [False reference, due to corruption of the text (another reading is:
.*. nr_ 1 * I
* Consilium
257,beginnbg:
Inter capitula
pads.
According to
the familiar
Dig. IL adv.
Rule xv.
" X frhe print is that noUUs, notabilis, and notus are of the same stem as wsco ('I come to know 1 ), the
neutral meaning developing different shades.-TR.] * [For concepts read aM0tar-fr
296
A Treatise on Military Matters
[PartX
b Letters to
Brutus, I. xii.
2.
eZKg.IH.iii.
60.
xiv. 5.
Oil Dig. Mil.
ii. 21.
* Swim.
* On Decretals,
ILxxiv.iS,
h Consilium
520, nos, 4 and
ff.
Bellatoribw,
z, the
14-
avoid it because it brings disgrace upon their offspring and the entire
agnatic group; for in them, too, a recrudescence of the father's crimes
is feared, and they are regarded as persons deserving to perish by the
punishment meted out to the father. a
(And lest we suppose that this is a case where imperial power
wished to secure itself by severity of punishment, Cicero* himself de-
clares that the principle 1 was introduced on valid grounds. 'Laudably',
says he, 'was this provided by law, with intent that affection for their
children might render parents more considerate towards the state.')
Next I raise the question whether it is permissible for a command- 19
ing general, whom to-day they call 'captain genera?, to make a peace.
And already I have given the answer above, in pointing out a distinc-
tion as to the powers of this officer in the making of truces. Assume
then, as there, that if he is not himself the sovereign, or does not hold
a special commission from the latter, he cannot make peace; for this
power is not conferred by a general commission. Such is the view, for
example, of Bartolus, Angelus, and others. d
Again, I raise the question whether a sovereign or a free state may 20
make peace and, by its terms, remit payment for losses inflicted upon
its own citizens and subjects. Baldus 6 cites Hostiensis f as saying that
this is not permissible, unless the populace and those who have suffered
the loss give their consent, and Panormitanus, s too, seems to agree; but,
although this is generally true, there is exception if the sovereign takes
such action for reasons that concern the public weal, e.g. in the present
case, when he so acts in order to secure the blessing of peace. Decio h
warns that the above must not be forgotten, citing many passages in
its confirmation, and declaring that it is the commonly accepted view,
from which no one dissents.
But Joannes Lupus 1 states that if peace cannot be made on other
terms, the populace must acquiesce in the action of a ruler who remits
losses; for, although he thereby acts much to the disadvantage of his
subjects, on the other hand he benefits them largely in securing peace
for them. This fits well enough with the views of others ; there remains,
accordingly, only the question of intent. And this is resolved on the
basis of the terms of the pact.
But is the person who caused the loss secure in his conscience and 21
in the eyes of God on the basis of this kind of remission and the terms of
a compact ? and I am speaking as much of the sovereign who declared ^^
the war, as of his soldiers. And whether a person engages in war
unjustly, or whether with justice he defends himself against unjust
attack, the Doctors conclude that such persons are not secure. This
was the view of the above-mentioned Joannes Lupus, 1 and it is more
clearly expressed by Angelus de Clavasio,* who holds that a ruler
1 [Speaking of making the children of an outlawed person share his fate. Taj
Chap. II]
and Warfare
297
waging an unjust war may not remit 1 losses, even those of his own
subjects. (This bears on the preceding question. For the humble
subjects [130'] are not at fault, even though the war is unjust; for they
are led like sheep by a shepherd, whithersoever their rulers and officers
desire.)
And this is not at variance with my earlier statement to the effect
that, if a war is just, it is permissible to plunder the subjects of the
other party. For though that may excuse an enemy, on the ground that
his cause is just (as in the case there), it does not excuse the ruler who
makes resistance unjustly and brings loss upon his subjects (as is the
case here).
Much less, therefore, will he be free from responsibility for losses
inflicted by his soldiers upon the opposing party, whatever may be said
in the compact and terms of the peace.
And here applies a remark of Barbazza,* who cites Petrus de
Ancharano,* to the effect that even though states by compact have agreed
that reparation be not made for the plundering on either side, the
plunderers will nevertheless not be safe on the score of conscience; in
fact, as he says, the owner of the stolen property may sue for it, the
pact notwithstanding.
This, perhaps, will need to be limited to the case I shall soon take
up. c Or perhaps we could say simply that, even a pact notwithstanding,
when dealing with a question of wrongdoing, recourse may be had to
an ecclesiastical judge falling back on the well-known admonition of
the Gospel, d on which the Canonists discourse at length, 6
But as for the ruler whose cause in the war is just, Angelus says
that if he cannot otherwise secure peace, unless he remits offences and
loses, he is excused in the sight of God if he inflicts loss on his own
people because he is forced so to do.
However, as I have indicated, in the sight of God this pact will
not excuse the ruler of the other party, nor yet his followers; for a
sovereign cannot without good reason set aside the mandates of divine
law, as it is written: 'Thou shalt not steal' which certainly covers
plundering (which is barefaced robbery) and all unlawful seizure. 1
Sovereigns, therefore, should be wary of undertaking war on in-
sufficient or 3 unjust grounds. For though 4 they may be secure in point
of kw, they are, however, not free from responsibility in the sight of God.
And though they often have at their side evil advisers, ecclesiastical as
well as lay (who, either to curry favour or through fear, frame all their
speeches to suit them, and manufacture and seek out justifications
for their party, so that it may appear that their cause is righteous of
whom it may truly be said 'seeking excuses for sins'), good kings and
1 [For temtttre read remtterc. Tfc,] 2 [Tell it unto the church'. TR.]
a [Forwwreadwi*. TR.J 4 [For msi read fci TR.]
1569-64 o q
xiv. 2 ; and On
'Again, de
Affictis*
d [St . Mattkew,
xviii. 17]*
On Decretals
Angelus de
Qavasio], the
34-
298
A Treatise on Military Matters
[PartX
Part II,
chap, iij no. 4.
Bk.II.5i,
chap.i,6,
no. 25.
vii.7-
sovereigns should bring their insight and wisdom to bear, examining
their own hearts. For therein they will discover right counsels and
truth and just judgement as to war.
Soldiers, too, should be wary, especially volunteers, who are
serving simply for the compensation. For they will have no excuse in
the sight of God for losses which they inflict upon the people, either
of their own party, 1 or even those of the enemy, [131] as I have noted
above. 4
Again, de Afflictis made a remark on the matter of remission of
losses which we should not pass over in silence, namely that the con-
clusion above reached is valid in the case of a peace of general scope
which is made with an adversary independent and free ; but not so, if it
is made with a subject e.g. if the King of France were at war with
the Duke of Bourbon. For in this case the King would not be able in
the peace pact to excuse the Duke and his followers for losses which
had been inflicted upon the subjects of the King unless the King
were willing to reimburse them out of his own treasury. So de Afflictis. b
And perhaps the most plausible explanation of the rule lies in this,
that while the King probably could force a vassal of his to sustain those
losses, there underlies no consideration of the public weal which favours
the condoning of the damage inflicted. Moreover, perhaps in this case,
too (as in another previously discussed), it would need to be determined
whether or not the King could conveniently achieve peace without
the remission. But de Afflictis simply makes the bare statement, and
mentions none of these considerations. He cites also certain Consilia
of Alexander, which I cannot locate, perhaps because my copy of that
text is defective.
Finally, on this subject of restoring things stolen, another point
mentioned by Baldus should be noted, namely that states which in time 23
of war occupy strongholds that they afterward refuse to restore except
on payment of money, do wrong in extorting this price; and they may
be sued for the money, notwithstanding the terms of the peace that
has ensued. (I understand this to be a reference to strongholds taken
from others than 2 the enemy. For if things are taken from the enemy
(assuming the justice of the war), it is allowable to retain them by law
of every kind as well by divine law as by the law of nations, as was
noted above in its place.) And Baldus here adds that the same rule
holds for the brigands and robbers, whom he 3 calls ruffians, who refuse
to restore plunder except for ransom.
Again, in regard to foragers (i.e. soldiers' servants), who seize and 24
steal the cattle of other people, 4 which a third party takes away from
1 [For partis. Sive lead partis, w>-Et]
z [For captis aliisguam read captis ab diis jwaw. TR.]
3 [For ipsi read ipse. TR.]
Chap. II] and Warfare 299
them, he declares that, even though the final captors are enemies,
the foragers are none the less bound to make good the loss to the
original owner; and that they can be punished for theft and cattle-
stealing. 1
This applies in general to soldiers too. For they ought not to turn
their attack from the enemy upon their own people, as is said in Code,
IV. Ixv. 35, at the beginning. But in our times this happens with great
frequency and without punishment.
In regard to my statement just above that strongholds which are
occupied must be restored to their owners without a ransom, under-
stand this to apply even though 2 a sovereign or a state has incurred great
expense in the way of intrenchment which surely a ruler has the
right 3 to do, both with respect to a feudal holding upon which he has a
direct claim, and also in respect to one that is fully under a subject's
control. See the passage in Digest, VIL viii. 16, I, where [ISl']
Albericus comments; so Baldus on the Feudorum Libri, II. vin, chap.
i, 2, where he says that in such cases the lord will look after the
defences of the stronghold, without expelling the vassal or harbouring
any ulterior motive; which is to say that no 'necessity' will be pretended,
if there really is none, and that occasion will not be seized upon as an
excuse as is sometimes done by the agents of sovereigns.
Baldus reverts again* to this topic, saying that the lord exacts no * On Dig. I.
payment from the owner of the property or the vassal for the reason ^^ a
that the expense was incurred at his own instance, and for the advance- quaero.
ment of the common welfare, (And it should not cause surprise that a
stronghold or any other property of a private individual may be
occupied and fortified with an eye to the public good; for this is possible
even in the case of a church, according to Petrus Bellapertica and Cino,
as reported by Baldus? This point I have already considered more at *ocfeLL
length in its place.) 2 *
[25] We should note another point which has a direct bearing upon the
decision reached above, namely that losses may be remitted by treaty;
for though peace has been made and the injuries and claims are mutu-
ally cancelled, with a formal covenant not to make further demands, still
a stronghold unlawfully occupied may be reclaimed, because the pact
here mentioned does not cover the reclamation of property. So
Alexander. ^
Note, moreover, that the reference is to a stronghold unlaw-
fully occupied before the war. For if it had been occupied during a
war between parties who had the right to make war and who had l
engaged therein justly, I should thinlr that the stronghold could not
be reclaimed, in view both of the law of nations and of war, and also of
the peace pact. For the ktter, if it does not exclude, at any rate does
1 [For abiegatu read abigeatu TR.] 3 [8si> ie, dSamsL TE.] * \pot ,Le, potat.- TR.]
300
A Treatise on Military Matters
[PartX
* On Code,
Ruhr. XII. xl.
b Bk,II,i 95
(Laudare DOS).
c lbid.
not include such reclamation, unless it was the stronghold of a private
person that had been seized, let us say because he belonged to the
other party (as often happens in these wars of ours) ; for then Alexander's
statement would unquestionably hold. (On this also there is discussion
above in another passage.)
Next I raise the question whether, after peace has been made, it 26
is permissible for a ruler to build forts and to entrench points which
he holds on the borders and confines of the other party with whom the
peace was made but on his side of the line. And Bartolus* seems to
hold for the negative; but he appears to be speaking of a case where
this prohibition was incorporated in the peace pact; and under these
conditions there is no room for doubt.
Baldus, however, who leaves no point untouched, considers this
question at length in a Consilium already twice cited above.* A peace
had been made between the Duke of Milan and the Dukes of Ferrara
and Mantua, wherein it was provided that neither party should aid 1
outsiders to cross the river by building bridges and supplying arms,
horses, provisions, and other things of that sort. Now a citizen of
Mantua or Ferrara had built a bridge over the Po, and a citizen of
Milan was diverting its waters and constructing a sort of redoubt.
Baldus raises the question whether either of these men maybe said to
have violated the agreement, and which one of them. According to
his wont he argues with acumen, and makes many a nice point regard-
ing this matter.
His conclusion is that [132] it was right to build and entrench the
fort, and to divert the stream. And he remarks that such we see to be
the common practice; e.g. the King of France builds forts along the
confines of the King of England, and the King of England in turn
does the same. (For in those days the King of England held on the
Continent and on this side of the water both provinces and cities,
which in course of time have fallen under French dominion; just as the
place anciently called Portus Itius 2 (now commonly known as Calais)
very lately 3 has reverted to French control.)
And Baldus adds that all the overlords do this, because, he says, it
is the right of each to entrench himself on his own ground ; and the man
will not be counted as doing so out of jealousy, but with a view to his
safety and defence. I think, however, that this will be judged according
to circumstances, and with regard to the character of the persons and
things involved. For if a rather weak and petty prince should fortify
some points on the frontier of a more powerful ruler, it would be more
likely that he was doing so with the idea of increasing his security than
1 [For inttaturam read iuoaturam. TR,]
* [For leius read Itius. Modem scholars question the exact location of Portus Itius. It was,
however, somewhere in the vicinity of cape Gris Nez, which has been identified with the ancient JFVwwn-
tawm 2/H,--El>.] 3 [January 7, 1558,]
Chap. II] and Warfare 3 o I
that he designed to be more confident in aggression. And this point I
should think ought to be stressed all the more, if he had previously
suffered invasion and loss at the hands of that same ruler. For it would
be the part of prudence to have regard for future contingencies, and
to forecast coming events in the light of the past.
Baldus states, besides, that it is one thing to be in a position to
inflict injury, and another actually to perpetrate it; for in the first case
there is no breach of the peace; just as, he says, in a like case a post-
humous child does not break a will before his birth, even though he is
in a situation to be born; for until potentiality develops into fact it is
like a suspensive condition. Indeed, he says, if a man is in the act of
injuring, but no injury is actually inflicted, he "will not be said to
contravene the peace, unless this specification was set down; for, he
says, a peace is nothing beyond the exact terms of the peace.
He adds here that there are two kinds of peace, one having to do
with the past, the other with future and subsequent conditions; and
this latter calls for a continuance of peacefulness, in such wise that
there will be no second recourse to arms, in case the injury recurs. But
27 a new circumstance arising, if not connected with the original grounds,
does not involve the question of breach of peace; just as a person does
not violate an agreement or a verdict, if he proceeds on the basis of
newly enacted law; for peace is a matter of strict law. Likewise,
28 peace is not violated by legal controversies, be it a public or a private
peace; nor yet is it broken for slight cause or even for disquieting sus-
picion, unless the latter is substantiated by action.* _
Baldus goes on to say that if a new and unexpected contingency
arises which must be met in the interest of the public welfare, it is
permissible to meet it, and to apply a remedy; and, nevertheless, on
that ground it will not be claimed that the peace is violated, though
the action may be out of harmony in its effect, but not in essence.
He adds, again, that a person does not violate a peace who
29 appropriates a gain that was accruing to another from something belong-
ing to himself particularly if it is not done out of ill will, but for a
pressing reason.
[132 / ] He also distinguishes here between the causes that have
furnished occasion for war. Thus, if they have arisen ^from personal
injury, the peace is not broken except on the basis of similar offence;
for peace and war are complements one of the other. Moreover if
injury both to person and to property have preceded, the peace will
cover everything; and he who violates it in one point contravenes it
as a whole, provided that the act is similar to the others in the past.
Baldus here concludes, finally, that refinements and arguments on
these topics are dangerous, and that they are litigious rather than final.
And for this reason he urges that all occasion for war be eliminated;
302
A Treatise on Military Matters
[PartX
a Consilium
195 (above
cited), at the
end.
* On Code TV.
liv. 9, the
words sed pone
quidam nobilis.
d Consilium
52, qu. Afagm-
ficonan, past
the middle and
near end.
f Consilium
116 (Fuw
ntussariis),
toward end.
B Consilium
12, col, 21.
h Repetitiones
26.
Bk,III, 3 g,
last col. but
Bt 1, 70,
no. 6.
Visisetsaepius
rectnsitis, last
col. but one,
the words
praemissis no*
obstanttius.
for peace should be without loopholes.* Thus he answers the question
above 1 propounded.
Add, further, that when by a peace compact strongholds or other
places captured in war are to be restored, they ought to be surrendered
in good faith, so that the person who recovers them will hold possession
in safety and security as respects the individual who previously had
occupied them. Hence it would not be permissible for the latter, in
the near proximity of that stronghold or post, to establish another
fortified position even on land to which he had a claim. For in such
a case he would not be said to have made the restoration in good faith.
Thus Bartolus, b who is cited and followed by Baldus. Both cite
Decretals, II. xiii. 19, which is a passage worthy of note in the present
connexion, this subject being clearly treated there.
And just as a ruler himself, after making a peace pact, may not 30
construct new strongholds of this sort or retain possession of those already
constructed, no more can his successor, So Romanus/ who meets the
objection which might be raised (namely that, in regard to his own, a
person may do as he pleases) by saying that such privilege does not
extend to malevolence, which, as he here claims, is taken for granted
in case of doubt unless the strongholds are essential to safety. 6 And
Romanus f abundantly demonstrates also that the successor is bound to
make good the promises of his predecessor.
As to the question whether a ruler, in the interest of peace, may 31
cede a vassal of his to another ruler, let us say to the one with whom he
has waged a war, Giovanni Nevizan in the Consilia of Brunus e says
that Azo argued this question in favour of the Duke of Brittany, whom
the King of France, in a peace pact with the King of England, had
ceded as a vassal to the latter 2 . He reports that Azo held that the king
did not have this power; and he says that Igneus supports the same
view at greater length*. See further there.
However, Socini 1 has something to say for the contrary view
(which see); and perhaps, in the matter of a peace pact, his position is
the sounder. But normally it is no more permissible for a lord to appoint
a new lord for a vassal than for a vassal to exchange his lord; and Paolo
di Castro 1 is sponsor for the statement (according to the latest edition)
that a Hng may not give away a state or parts of his realm against the 32
will of the populace, and without consulting the nobles.
But it seems to me there is a vast difference [133] between simple
cession and the compacts of peace or even of war a point which
merits very careful consideration; and I am inclined to the view of
Socini by a statement of Alexander ; k he affirms, I say, that, in
1 p.e. under no. 26. TR.]
* [Treaty of GalSton, May 18, 1200, according to the terms of which, the young Prince Arthur,
Duke of Brittany, passed out of the control of Philip II of France, into that of his uncle John, of
England. E0J
Ckp- D] and Warfare
the interest of peace, a sovereign may 1 deprive a vassal completely
of a stronghold and present it to another. This is a much more
33 extreme case;^and he here makes many citations in support of his view.
I next raise the question: In view of the fact that it has been said
above that peace includes subjects and (according to some) adherents
also, particularly if the breadth of the terms allows of this I raise the
question, I say, whether it includes those as well who later become
adherents or subjects. For example, the King of Spain and the King
of France, after a long and tedious war, came to peace and good will,
and ordained that therein be included all their adherents, associates,
and friends. After the making of this peace, it happens that the King
of Spain declares war, let us say on the people of Lucca or Genoa, who,
previous to the peace pact, were not allied with the King of France.
But, on the declaration of this war, realizing that they are no match
for so powerful a king, they give adherence, or even make themselves
and their state subject to the King of France. Will they thereby be
benefited 2 in view of that peace pact, inasmuch as therein are included
allies, adherents, and subjects ?
Barbazza* considers this problem, and concludes that the state in
question is included in the pact. His strongest point is that every act *' b 38 : ^' iiitr
allows of the explanation and interpretation: 'While conditions thus panti.iZtt"
hold and remain unchanged,' Now, says he, the state of Lucca was ^ butone>
independent at the time war was declared against it; accordingly there
should not be an extension to cover the situation when now it is no 3
longer sui iuris.
This Doctor might have supported his position by a striking and
memorable case. In ancient times, the Samnites declared war upon
the Campanians; and when the resources of the latter failed, and they
were on the point of falling into subjection to the Samnites, they sent
envoys to Rome to beg for help. The Senate answered that both the
Campanians and the Samnites were friends and allies of the Roman
people; hence it was not possible for them to help one party against the
other. On receiving this reply, the envoys (as previously instructed by
their countrymen) made surrender of themselves 4 and their city to the
Romans. Whereat the Romans notified the Samnites to desist from war,
and to refrain from inflicting injury upon people who had surrendered
to them; and when the Samnites did not comply, the Romans declared
war upon them, with evil issue for the Samnites; so Livy records, 1 * b vu[ndx]ff.
To me the above reasoning of Barbazza seems weak and incon-
clusive. For my right ought not to be impaired by the action of my
enemy, according to the common rule: 'By the action of one party,
unfair terms are not imposed upon the other'; and that argument of his
1 \pal., i.e. poiest.* TR.] * [For iuffdwntw ne read luvabutitotrne.--- TR.]
3 [A negative seems to Jiave fallen out of this clause. TIL] + [se se, Le. stse. Tit.]
34
A "Treatise on Military Matters
[Part X
On Dig,
Durandus,
tittt. De Trmga
Constantiacfc,
the words quid
autem si quae-
col. 4.
'while conditions thus hold' can be given another turn. For it ought
to be understood with reference to the time of the peace pact, when
the above-mentioned persons were not subjects or adherents.
Support [133'] for either view is found in the remarks of Baldus 1
on the question whether a commission carries over to future 1 contin-
gencies. And the above problem is considered by Giovanni d'Andrea, b
for example, who says that if a peace guaranteed by penalty has been
made for self and subjects, it covers a town that afterward gives
allegiance, citing Digest, VIII. ii. 23. But Baldus, on the Peace of
Constance, I, implies the reverse, holding that if, in the territory of
one of the states named in that peace pact, another new city were
founded, it would not be included in that peace.
Perhaps the following distinction could be made: (l) The city in
question gave its adherence, or made its submission, before the event
of war, and then it will be included in the pact, on the principle of
Digest, VIII. ii. 23. For inasmuch as such a city can no longer make
war on its own authority, being no longer independent, it is not proper
that war should be declared against it either, unless the merits of the
case have been looked into by the person who proves to be its lord at
the precise time when the declaration of war is under consideration,
even though the occasion for declaring war has preceded the surrender
(thus distinguishing after the legal fashion, between the time of plan-
ning an action, and the time at which it materializes and becomes
effective). There is support for this in what I have said above in Part I
of this treatise, chapter v. Or:
(2) The submission was made after the event of war; and in this
case I should not think that the city was included in the pact, nor that
the king who declared the war was under obligation to abandon pro-
ceedings 2 under the terms of the peace, inasmuch as the start and the
initial action were permissible. For it is clear that at that time the city 34
was not included under the pact; and it is likewise clear that it is the
beginning that must be taken into consideration, according to the
statement of Baldus on Digest, XL VIII. v. 24, 4. This statement
Decio d applies to another problem.
But whether it is permissible for one of the kings to accept the
surrender of the city, and to defend it against another king with whom
he is in alliance, this will be determined, I think, by the justice or
injustice of the war being launched. And the incident above cited
regarding the action of the Roman people does not constitute law; for
that people did many other things which could not well be justified.
There is a further bearing upon this matter in what I am about to say
under the next query.
I ask, then: If a new occasion arises for making war, should it be 35
[Omit ibefore/wfifflj. Tit.]
]incemptis, i.e. ittaptu.-^
Chap. II]
and Warfare
35
said that peace is violated ? Bartolus thought not;* and elsewhere* he
declares that the man who has made a peace and promised to do no
injury must be understood to have made the contract with the
proviso: 'unless I shall so do with the sanction of law'. Hence he
infers that such a person is at liberty to injure the man with whom the
peace was contracted, in case the latter should become an exile from
his country, and a statute sanctions the infliction of injury upon such
exiles, regardless of peace pacts. Under this head there are many
exceptions; [134] on the main point see Alexander* and Romanus. 6
36 As to the question whether it is permissible to injure a person who
is banished after peace has been made with him, Bartolus 1 answers
in the affirmative. But this verdict does not find favour with Joannes
of Imola, 8 on the score of conscience. I believe, too, that there is injury
to reputation, especially if that qualification of banishment was known
to the contracting parties; for it is an altogether serious and unseemly
thing to fail to keep one's word. On this point Paolo di Castro* also
agrees.
37 Related to the above verdict is the statement of Bartolus 1 to the
effect that peace is not said to be violated, and the penalty for breaking
the peace is not incurred, by adultery committed with a married woman
or by debauchment of a daughter. So also Alexander stated 1 . But on
this see below . k
Hence Baldus 1 said that a thing which does not fall within the
scope of the war does not enter into the essence of the peace pact.
Hence he assumes that if a man has agreed not to injure in person and
through his partisans, he is understood to have promised in regard to
matters connected with the war that preceded, and not with reference
to the personal hostility of individuals. And this he says we must not
forget.
38 And note here an important distinction as to the decision in case
it is doubtful whether an injury arises 1 from the old grievance, or
from a new occasion. For, on the one hand, 2 the nature of this new
injury is like that of the original injury in regard to which peace has
been made; and then it is assumed to be a result of the old grievance,
and, accordingly, the penalty is incurred.
For, says Baldus, if the original grievance led to serious injuries
(such as homicides between two families 3 ), and peace followed; and
then 4 a man of one party, on new provocation, inflicts a slight injury
(let us say, a slap), and a relative of the injured person kills the smiter,
the necessary inference will be that the latter had not forgotten the
original grievance because the revenge is out of all proportion to the
1 [For praecesserit read processed.^.]
* [The contrasted case is noted under no. 42, beyond the middle. TR.]
3 [For/awiaw leadfamftas* TR.] 4 [For fx indt read edwLe. Tn.]
1569.64 R r
On Dig,
XLVIII.xix.
I6,2.
{.96.
c Addit.to
Bartolus on
Dig. XLVIII.
xix. 1 6, 2.
,.
1, 19, col. i and
2 ;Bk.IV,ii5,
no. 4.
8 Consilium
258 (In casu
proposito) ; and
183-
* Quaesl. begin-
ning: Lucanae
civitatis statuto.
i. 96, last
words.
i. 96, last
words.
.
XLVII. ii. 39.
J Consilia,
Bk. II, 113
(Viso instru-
mento trttgae) ;
Bk. IV, 115,
no. 5, follow-
ing Comeo,
CuiZw,Bk.I,
51, no. 4.
* Underno. 52,
near end.
lviii.5,last
col.
306
A Treatise on Military Matters
[PartX
a On Dig.
XXIV, iii. 26,
col. i.
* On Code IV.
Iviii. 5.
Bk.IV,i6s
(Poem inter
new injury. Therefore, the penalty for breaking the peace will be
entered against the slayer. This judgement is reported and highly
praised by Alexander," who says that he rendered this opinion at
Cesena.
I believe that Baldus was right. For if an injury is so slight that
in the case of another offender it would probably have been disregarded
and tolerated, or at any rate far less severely avenged, we shall have to
assume that the slayer seized upon an occasion for an excuse, and was
avenging old grievances. But I do not like the illustration of a slap; for 39
that is a much more serious affront than Baldus assumes, especially
among dignified persons and soldiers* For there is no one of them who
would not prefer in a quarrel to suffer a serious wound than a slap from
the hand. In fact, in this connexion I have witnessed the greatest
concern among noblemen, when it was a question [134'] of making peace
regarding the delivery of a buffet. For far more tokens of amendment
and regret were demanded from the offending party, than in cases
where wounds had been inflicted.
There is another noteworthy case discussed by Baldus.* For
suppose, says he, that by statute it is provided that if I injure a man
who has injured me or an agnate of mine even to the fourth degree,
one-half of the penalty is remitted; but that he who has wounded a
relative of some one who has injured him, shall have his hand cut off.
Suppose now that Anthony injures me, and Philip, the brother of
Anthony, injures my brother John, and John then wounds Anthony.
Surely it might be thought that the wound inflicted by John was driven
home with a view to avenging his own injury, received at the hands
of Philip, brother of Anthony. It could also be conceived of as inflicted
to avenge the wrong done to me by this same Anthony which will
be the interpretation that relieves of penalty through the statute
allowing vengeance for injury done to one's relatives. In the other
case, there will be application for the statute calling for amputation
of a hand, in view of the other provision which punishes a man who
wounds relatives of an offender.
The judge, says Baldus, will have regard for intent of mind,
determined on the basis of the nature of the actions. For if the injury
was slight which Anthony inflicted upon me, and it was a severe injury
that Philip inflicted upon John, and the injury to Anthony likewise
was severe, it will be judged that John has avenged his own injury upon
the brother of the man who injured him, and not that he has avenged
the injury done his own brother and this in view of the disparity and
Incongruity of the vengeance as compared with the injury done his
brother.
And hence the conclusion of Pietro Paolo Parisio c in a case where
two family groups had made peace with one another, and later a man
Chap. II]
and Warfare
meeting an individual of the other family blocked him with his elbow,
and, as he says, checked 1 him ; whereupon the individual who was struck,
in company with many of his connexions, made an assault with an
armed band and attacked some of the opposite party. In the considera-
tion of the question who is to be called the peace-breaker (i.e. he who
knocked with the elbow, or the assaulted person who attacked others),
he arrives at the conclusion that it is the person struck, and not the
original aggressor. For, says he, that punch with the elbow might have
been accidental, and not malicious or intentional; and even if delivered
purposely, it was nevertheless a slight injury. And by a slight injury,
40 he says, peace is not contravened.
But whatever may be his conclusion in the case where it is assumed
that the man elbowed purposely, I should think that we ought to take
into account the character of the persons and of the deed, and many
other details which (quoting Demosthenes) the Jurisconsult 2 in Digest,
XLVIII. xix. 16, 6 says must be considered. This passage is in Greek,
and Haloander translates as follows:
Tor it is not the blow that rouses anger, but the sheer indignity
of the performance; and it is not so serious a thing for freeborn men to
be beaten 3 (bad though that is) as to be beaten with an accompaniment
of insult. For he who beats another may allow himself many liberties,
[135] the greater part of which the victim cannot demonstrate and
make clear 4 to another person the pose of body, the expression,
verbal abuse, adding now an insult, now impersonating an enemy, now
landing a blow with the fist, now slapping 5 the face. These are the
things that move, these disturb the even balance of the mind of a man
unused to contumely and disgrace. 3
It is on the basis of such things that a judge will make up his mind
which is to be counted the aggressor in injury, the provoker of strife,
and the violator of the peace.
For even he is the provoker of strife who stirs another to anger and
41 causes him to fight, as Baldus has pointed out* And on this ground the
42 same writer declares 1 * that a man is not chargeable with injury if he
offends under provocation a statement reported by Felinus, being
the last in his lecture.
On the remark above that peace is not considered to have been
violated by adultery, or even by theft at the expense of the other party,
see the opposing view of Baldus, d who says specifically that peace is
violated by theft or any other manifest and serious damage.
I should believe that this might be true in case it could be made
1 [Reading doubtful. Tn.] r
z [Claudius Satuminus, or as Lend (Palwgemsia iuris dyilis) surmises, Quintus Claudius v enulaus
Saturninus.-Ei>J 3 [For cedique read ^--TKj
+ [Even with rather free handling, the Latin here but poorly represents the original Greek. TR.J
5 [eedens, i.e. caedetts. Tiu]
B On Fends,
Bk. II. 28,
col. 2, the
words not,
ergo ; and
Consiiia, Bk.
II, 144 (Super
quaestione),
Col, 2,
Durandus, tit
De Accusa-
tionibus, the
word provoca-
tus, following
Durandus
there in i,
the words quid
On Decretals
II. xxiv, 13,
iastcoL
d On Feuds,
Bk.II.27,
chap, i, 10,
toward end.
308
A Treatise on Military Matters
[PartX
* Cmsttia,
Bk.II.4o,
COl. 2.
., no. 16";
and Consilia,
Bk.II.4i,
No.i6,as
above*
*0*Dig.
XLVLvui. 24.
clear that the act arises from an original grievance. For suppose that
hostility arose originally because of theft or adultery, and the same
individual should again commit theft or adultery, either in the case of
the same thing or person, or in the case of some other: Will it not be
said that the peace is broken ?
But if the new offence 1 has no connexion 2 or similarity with the
original grievance, then I should hold with the generally accepted 3
view of others.
As to the question whether the offence is new, 4 or of the old type,
the judge will decide according to the circumstances, this procedure
being suggested by Digest, IV. ii. 14, I. (Here Angelus notes that,
though intimidation may justify an action for injury, still, if it is
brought to bear for purposes of plunder and loot, it will not supply the
basis for such action. For bandits, he 5 says, do not lie in wait on the
road with intent to inflict injury, but to secure loot and gain.)
But what if peace has been made between two families, and those 43
present have given a promise for the absent, with assurance of ratifica-
tion and the incorporation of a penalty? If some one of the absent,
before he has ratified the pact, should injure a member of the other
family, would the penalty be incurred, and are those who made the
promise liable to this penalty for the breach of the peace ?
See Corneo, a who holds that the penalty is incurred, even though 6 44
the injured person had not ratified the pact. For already the right of
action was open to the contracting parties as a result of the treaty,
though both parties were under a check because of the exception of
consummation not effected (i.e. of ratification not yet accomplished);
but this consummation one party could accomplish even after the
penalty had been incurred by the other.*
And if the clause [135^] is added : 'while the pact remains inviolate', 45
and the other party, which was injured without provocation, should
contravene the peace, the penalty will not again be incurred thereby;
especially if there was the safeguard of an oath in the peace instru-
ment, and the contracting parties were not minors (in view of Code.
However, as for his statement that the penalty is incurred for an
injury even before ratification of the pact, this was debated by Dynus,
according to Bartolus on Digest XLVTII. v. 14, 6, who says that this
law is evidence that subsequent ratification is not retroactive, if matters
are not still in the original status. This point Bartolus there leaves
undecided. But Paolo di Castro d holds for the contrary view of
Cprneo; and as regards the argument of Bartolus 'that matters are not
still in the original status', he replies that if they are not in the original
1 [See note 2 on page 305. TR.]
4 For iwoa, m read wwtw. TR.]
2 [CM, Le. commute^ TR.]
5 [For ipsae read ipse. TR.]
f ..
6 [sri, i.e. ettamsi. TR.]
Chap. II]
and Warfare
39
status through, culpable action of the enemy, it amounts to the same
thing as if they were still in the original status.
46 This was the situation in the case above considered. For the
aggressor there had no right so to act that it should not be within
the power ^ of the other party to ratify the peace; which accords
with the view of Baldus, a who says that, though the man had not yet
ratified the pact, he should not have been injured without good reason,
nor attacked with headlong haste.
(This I think sounder than what Corneo* said in a similar case, 1
namely that a peace or truce does not include a person who has not yet
been named, and who in the interim has been killed on the strength
of arguments which, in my judgement, are very weak.)
47 Angelus c claims, however, that the penalty will not be enforced to
the enrichment of the person injured, but to the advantage of those
who made the pact. This perhaps is reasonable, in view of the fact
that in the reverse case they would be liable for the penalty (i.e. if an
injury on their side had followed before ratification), as was pointed
out above. So it is natural that advantage should fall to those who are
liable to disadvantage/ But see below. 6 Nothing of this, however, was
said by Corneo in the Consilia above cited, perhaps because of excessive
haste in his decisions.
48 We should note, further, a point brought out by Socini/ namely
that he who makes peace for self and followers is under obligation to
arrange and see to it that they keep the agreement; otherwise he is
himself responsible. In support of this he cites Bartolus. 6
49 Corneo h adds, however, that even when peace has been broken and
the penalty incurred, it is not considered that peace is at an end so far
as others are concerned. Thus it will not follow that they may be
injured, though one of their party has contravened the peace, but he
is the one that will bear the punishment. This is reasonable with
reference to a peace between individuals; but in case of war I should
think that the nature of the breach would have to be considered very
carefully. But I do not carry this matter further. (And as for the
statement that only the individual is liable who contravened the peace,
and not the others, [136] Corneo 1 offers further confirmation, citing
Bartolus. 3 See also below.*)
50 Once more, Corneo 1 declares that if two towns have made peace
and a covenant not to injure one another, either generally or specific-
ally, it is understood 2 that this agreement applies to those of adult age
at that time when the peace was made, and not to those who sub-
sequently may have come of age (thus confirming a conclusion already
reached above, namely that the development of a new occasion exempts
from an original penalty); however, if an injury is done, the peace-
1 For casu. Idem read casu t&m.'TR.] 2 [Omit qudd before jnfeHigitaf. TR.]
* On Code TV.
xxviii. 7, the
words etper
hoc delerwina-
tur QuaesliOt
b Consilia,
Bk. II. 218.
o On Dig.
XLVIII. v.
H, 6.
xvii. IO T with
other familiar
laws.
8 Under no. 53,
near middle.
f Consilia,
Bk, III. 87,
last col. but
one, the words
sed iamen.
s On Dig. ILL
iii. 67 ; and on
Co&ILm
24.
(above cited),
no, 18.
Consilia,
Bk. III. 167,
col. 2, the
words et
quando plures
promittuni.
ii. 19, qu. 2;
and on Dig.
XLV.U,t,
qu. 6.
* Under no. 53,
near the
middle.
iConsitium
167, above
cited.
310
A Treatise on Military Matters
[Part X
breakers will be liable to the penalt7 otherwise prescribed for the
re guilty.
a Consilia,
Bk. IL 113,
col. 2, the
words alia
ration*.
13 Decretak, V.
xix. 19 ;
Decretals, III.
xlix. 10.
(above cited),
last col. but
one, no. 2.
(qui afratre).
xv. I6. 1
e Ibid.
'Dig. XII. i.
41 ; XIX. i. 4,
i.
* On Dig.
XXIV,iii.26.
.96
* the words
fwfcf dicemus.
1 No. 14.
wron
And he adds that if in the case of an individual a new circumstance
develops, and his old friends and associates run up to help him, no
one of them will be held guilty of breach of the peace, because that new
circumstance excuses all, and causes an abandonment of peace; hence
peace no longer exists, and nothing can be predicated of a thing non-
existent.
Alexander* says also that after peace has been violated by one party, 51
the stipulated penalty is not incurred thereby, if the other also contra-
venes it even though there be in the peace instrument the phrase
'while the pact still holds', or the proviso 'so that the penalty be incurred
as often as 3 , &c. For, says he, those phrases operate solely for the 52
advantage of the party that keeps the pact, and not for the advantage
of the peace-breaker; for he in vain looks to the law for help who is a
transgressor against the law< b
Such was the view of Socini also; and in regard to this opinion the
post-glossators should be consulted.* That it is the common verdict
Alexander affirms, 6 rejecting the dissenting opinion of Joannes of Imola,
and asserting that the phrases above quoted must be taken as applying
to the violator; for without them the punishment would be incurred
once only, and as a result of the first breach, whereas because of
them it is incurred over and over again (though otherwise it might
seem impossible that there be infraction of something no longer
existent, in view of the rule cited to the effect that a thing non-existent
has no elements 1 ).
Baldus 8 says, moreover, that if a person who has broken the peace
pays the penalty, the peace appears to be reinstated; consequently, if
another of the opposing party were to violate it too, the penalty would
be incurred by Hm 2 also. This seems reasonable; and Imolensis follows
here, h inferring on this ground that if the 3 original peace-breaker is
injured after paying the penalty, he too can lay claim to the penalty
agreed upon for the penalty paid by himself is in the nature of a
satisfaction, which is the argument here used by Baldus.
But Alexander here dissents/ on the ground that he who injures
in retaliation does not incur the penalty which also was [136 7 ] the
view of Paolo di Castro, 3 even in case the phrase is added 'while the pact
still holds'. Perhaps the verdict of Baldus is truer and fairer, namely
that payment of penalty takes the place of observance of the pact, as
he bids us note.
So Cino on Code II. iii. 27,* where Alexander also comments, 1 in
a question concerning a person who has contracted to exchange his
1 [Correcting false reference. TR.]
* [For ipsoe read *#. Ife J
1 [For ip% read ipse. TR.]
Chap. II]
and Warfare
311
horse with another under pain of a forfeit; and even if the man should
not make the exchange, but has paid the forfeit and it is an equivalent,
he may sue for the horse. Or rather, let us say, it should be considered
whether the forfeit is exacted on account of the breach of contract or
as profit. In the first case the payment is of no advantage to the
contract-breaker, because thereafter he will not have the support of
the contract; but in the second case, the situation is different. So
Baldus on Digest II. xv. 16, second lecture.
And on that passage all the post-glossators make the comment that
the phrase 'while the pact still holds 3 can never thereafter help a person
who has once broken an agreement, 4 unless another clause is added with
it : 'the penalty having been paid, or not', &c. b But I fail to see on this
basis what help there would be for the covenant-breaker, 1 if the
verdict of the Doctors above recorded is correct.
Angelus said, too, that the man who brings intimidation to bear
is counted as contravening a peace; and Baldus d gives the explanation.
For, says he, injury involves violence, from which fear is inseparable;
whereas theft does not inflict injury, but loss,
53 This explanation does not fit with what has been said above in
regard to adultery; for through it the gravest injury is inflicted,. 6 In
fact even obscene language addressed to a wife constitutes injury, as
Baldus 1 admits. And this is manifest enough; for no one could fail to
be injured by such procedure.
Bartolus 8 recognized the provocation, and offers the explanation
that the case of a vassal differs from that of an utter stranger, in view of
the profound respect owed by a vassal to his lord. But this explanation
does not seem conclusive, because, as I have said, no one with a spark
of self-respect would not experience resentment 2 and feel himself injured
by such procedure.
Bartolus offers another explanation that seems to have more point,
namely that in peace instruments it is customary (he says) to insert a
phrase to the effect that the parties agree not to offend on the basis
of the original quarrel, as he puts it. 3 This might be accepted, in case
there are not added other more comprehensive clauses; but if it were
agreed not to offend further, I should think that the penalty would be
incurred for adultery too.
This view is supported also by the arguments which are advanced
by the Doctors on a very similar question, which is as follows: Titius
made peace with Sempronius, with a covenant not to inflict injury.
Later Titius wounded a brother of Sempronius. Query: Is the peace
said to have been contravened f
The Doctors agree generally that it is not. h And the chief
i [Reading contravtnienti for amvenienti.'fr.] _ 2 [For egreferret read aepcfgrret. XR.]
" Hi thus apologizes for the use of the word fcj#z.- TR.]
So Jason at
length there,
last col,, the
words in
glossa ibi, I,
si una.
b So Jason ibid.
14, r.
a #&,!, the
words post
annum.
* As is made
clear in Feuds,
Bk.Lv,i.
* On Dig.
XLVII.ii.25.
* So on Dig.
XLV. 1.126,
3-
312
A Treatise on Military Matters
[Part X
x. i t 9, and
I8,2.
v.2,8;
XLVIII. v.
3 and 4;
XLVIII. v.
12, 3-
"No. 37-
ii. 19, qu. 2.
following CWfi
VIII. xxxix. 2
(Hoc Jto), qu.
13-
B On addit. to
Bartolus, jJiW.
* On Dig. II.
x. 9, i, tie
words ex prae-
dietis etiam.
following Code
VIII. xxxix. 2
(Hoc itd), qu.
13, last words.
following Code
VIII. xxxix.
col. 10, qu, 13.
/&*.; and on
% XLV. i.
P^V., last col.
arguments [137] are that a brother does not institute action on account
of injury done to a brother, and action is not open to him in his own
name. But these considerations do not apply to injury through
adultery; for there the husband is injured, and he institutes action on
his own account.* For he prosecutes under a husband's right, and takes
precedence over all others, even the father , b It would seem that this
should be added to what I have said above; but since the Doctors
generally 1 adhere to the view which is there expressed, we should not
lightly abandon that verdict.
As for my further remark above d to the effect that only the
covenant-breaker (and not also his allies and associates) is liable for the
penalty of breach of the peace, there is support in a statement of
Bartolus 6 to the effect that though many on both sides participate in a
peace-pact, and individually agree to the penalty in full for those who
shall contravene the same, still if an individual contravenes the pact by
injuring a man of the other party, only the injured person, and no one
else, will bring action for the penalty.
Bartolus puts this more clearly elsewhere 1 (and see Alexander too 8 ).
So Angelus, 11 who adds that, strictly speaking, all members of the party
of the offender should be liable for the penalty of contravention; but
that, from the point of view of equity, it suffices that he alone be
forced to pay who broke the pact. The same thing was said by
Bartolus also. 1
But his statement that only the injured person brings action for
the penalty does not fit with w T hat was said above, J where I cited Angelus
on Digest XLVIII. v. 14, 16. To harmonize, we might assume that
much depends upon the way in which the terms of the agreement and
peace were drawn up; so Bartolus. k
It should be noted, further, that if many heirs succeed a man who
has made peace, 2 and one of these offends, 3 the penalty is a liability upon
all (but in reasonable proportion, and not in full). For they all represent
that one individual, as Angelus pointed out. 1 He makes a distinction,
however, between the heir of a man who has entered into a formal con-
tract, and the heir of one who has merely promised (so Bartolus, too, and
others*), and also between an act consisting of parts and an act indivi-
sible, 11
The Doctors raise also the following question : If a statute pro- 54
vides that settlement for homicide be on a money basis, in case the
slayer makes peace with the heirs of the dead man; whereas if he does
not so make peace, the penalty shall be death: if there are many heirs,
must peace be secured from all, or would it suffice to secure it from
one? Oldradus held that peace with one is sufficient; but Bartolus p
[For pat read pacem. TR.]
3 [For coni roveniat read contraseniat.3b.
Chap. II]
and Warfare
3*3
requires the agreement of a majority. Alexander demands even the
consent of all, however man7 they be a view to which Jason also
inclines. And Ripa a states that this is the general opinion.
55 [ 137/ ] Further: In what manner shall the fine agreed upon be dis-
tributed among those on whom it falls ? We may quote Alexander, 5
who says that the two contracting parties are to be regarded as two
corporate bodies; so that, even though on one side there are ten men
and fifty on the other, only one penalty is incurred, and this will be
assessed to each individual in proportion to the number of persons
participating in the contract. This is in line with the view of Bartolus
on Digest XL VII. ix. 7, who lays it down as a universal rule that
when a corporation or religious guild is subject to penalty for the
wrongdoing of a member, the penalty is never imposed in full upon all,
but all are cleared through the payment of one.
And as for the statement frequently made above to the effect that
punishment is not incurred when a person avenges himself under
provocation, understand this as applying to the penalty named in the
pact. For the fiscus may well bring action for a penalty imposed by
the law of the state.* However, it will advantage the man even in regard
to the fiscus, if the penalty called for by the pact should chance to be
due there as part payment. For if he is not liable for that part, thus
far he will not be liable to the fiscus either. So Corneo. 6
56 The question whether a guardian may make peace for a ward, or
an agent for an adult, is considered by Baldus/ who decides for the
affirmative, adding, however, that such persons may not subjoin a
penalty, nor make a peace that will be humiliating. So Jason too
declares. 8
But Paolo di Castro 11 states without qualification that a guardian
may make peace for a ward, even to the point of condoning an injury;
but Jason 1 declares that this is unseemly, finding support in Digest,
XLVIII. v. 12, 3. However, this law has little application, despite
what is said by Jason, and, before him, by Angelus. For it is one thing
to condone injury with a view to peace, and quite another to put a
money value on a serious offence a proceeding which the jurisconsult
scores in the passage cited ('he did not blush to choose the benefit
accruing from the dower in preference to avenging his family*).
The general question is treated also by Baldus, 1 who says that with
the guardian's consent, a ward may make peace. In fact even on his
sole responsibility the guardian may so do, if the ward is still an infant
(this, however, is perhaps subject to doubt). So, too, the ward may 1 take
such action for himself, with the concurrence of a judge acting as
guardian. And in these cases restoration in integrum will be precluded.
57 Next I raise the question whether a son who is not his father's heir
1 0$, ie. potest. TR.]
1569.64 s s
a Underno.io3.
b Consilia,
Bk. IV, 116
(Viso instnt-
mento pads).
the words
quaero quando
tenetur villa.
dD/g. XLVIII.
v.2, 4 -
e Consilia, Bk.
1, 51, under
110.9.
1 On Code II.
iii. 22.
* Ibid.
* On Dig. II.
xiv. 15, which
he reads with
10, 2.
314 d Treatise on Military Matters [Part X
has the right to make peace regarding the latter's murder, on such
terms as to 1 relieve the slayer under the statute above described; and a
passage in Digest, XXIX. ii. 20, 5, looks toward an affirmative answer.
Hence Bartolus there judges that if the son makes such an agree-
ment and accepts the money, he is counted as intermeddling 2 in the
inheritance; but if the statute stated that peace should be secured 3
from a son, 4 this act would not involve intermeddling. 5 (In fact it would
not, even though the reading of the statute were 'from the father's
heirs' ; for the fact of his being an c own heir' would give a son the right
to do this, even without intermeddling according to the remarks of
Bartolus himself on [138] Digest XXVIII. vi. 12, where, toward the
end of his Commentary, he treats this same question.)
It appears, however, that there is a lack of logic in his statement
on Digest, XXIX. ii. 20, 5 ; for if peace must be secured from the heirs
of the murdered man, a son, in making peace, seems to be performing
an action that cannot be performed except in the character of an heir.
And yet he says that when the statute demands that peace be secured
at the hands of the father's heirs, the fact of a son's being an Wn heir'
has this effect that, even without intermeddling, he can make peace.
Hence 6 it is not an action of such a kind that it cannot be performed
apart from the character of heir though this is what Bartolus had
stated a little above. Unless it should be said that there is a difference
in the wording of the statute i.e. simply 'from the heirs', as against
'from the heirs of the father only'; but herein I hardly see how there
could be a difference.
The Doctors, however, appear to have expressed themselves
variously on this question. For Cino and Baldus, as reported by
o# fc p Alexander,* hold that in the very fact of making peace a son appears to
xxvin. vi. intermeddle; whereas Saliceto* recognizes a distinction: (i) A man
* On Code v. makes peace in the character of a son, and then he is not said to inter-
B - 4 " meddle, because it does not necessarily follow that he acted with intent
that the peace should bring advantage under the working of the statute ;
or (2) it is specified that peace is made in order to give scope for the
operation of the statute, and then (since that cannot be done except
in the character of heir, this qualification being required by the
statute) he is said to have intermeddled in the inheritance; for the
words should be understood in their stricter sense, and, therefore, of one
who has become an heir really, and not in mere name.
My judgement is that it is better to hold simply, with Bartolus,
that the son is not regarded as intermeddling; and that, nevertheless,
there is scope for the statute despite what Jason may have said on
1 [For itaut read tto nt TR.] J [For in mtsceri read inmisceri.T&
3 [For haheat read habeatur. Tfc.] * fi.e. 'son* as contrasted with 'heir'. TR.'
s [For in imxtioni read ttmixtionemr- TR.] 6 [Reading not clear. TR.'
Chap. II]
and Warfare
Digest XXIX. ii. 20, 5. For it is certain that his being an 'own heir'
has the effect that a son, even without intermeddling, is counted an
heir, whether this looks to his advantage alone, or also to his advantage
and that of a third party, as stated by Imolensis. a And this applies
particularly when something is in question which does not affect the
actual inheritance, neither making it increase nor decrease, as in
the present instance. For the son in question, though not inter-
meddling, is yet heir to his own advantage.
In this case, then, it will be counted as if he had not refrained from
intermeddling, and, thus far, there will be, so to speak, two heirs in full :
(i) the son, in name and in fact to the extent of this advantage which
he enjoys ; and (2) the other, with respect to all the remaining claims
of heirship. And so either will be able to make peace; the son by
virtue and potency of being an 'own heir' ; and the heir by the immediate
right of inheritance; just as elsewhere we say, in the case of two
debtors in full, that payment can be made by either, and by either the
account is cleared. b (Moreover, Angelus holds that the right of
vengeance 1 is open to any one in full ; but this looks in another direction,
and does not bear on what I have said.)
58 Angelus d also raises the question whether a daughter may make
peace with reference [138'] to the killing of her father. And he decides
for the negative, on the basis of a gloss 6 which states that this ruling is
derived from the Law of the Lombards, which does not allow a daughter
to settle a feud, i.e. to exact punishment. And Baldus/ too, cites this
gloss to the same purpose. Some Doctors treat separately the case where
there is also a son living; and then this business belongs to the male sex
alone, for both vengeance and the making of peace are tasks for a man.
But this gloss s for the most part finds little favour; and it is held
that a daughter also may make peace, either alone, or with a male, if
she acts with him. So Baldus; h and this is developed further by
Alexander. 1 There is confirmation, too, in the remark of the satiric
poet that woman is most eager for revenge. 2
59 On the question whether a father may make peace in regard to
injury done to a son, Bartolus 1 takes the affirmative view, repeating it
on Digest II. xiv. 30, near the beginning, where other post-glossators
also comment. But the qualification must be added: unless the father
is an insignificant person in comparison 3 with the son; and, again, [he
may] not [make pe ce] in the case of a person closely related to the son
(e.g. if it were the son's wife that had inflicted the injury/ or if it were
one of his ascendants). 1 Both these limitations are noted by Bartolus. m
1 [For vindicte read mndictae.Tk.]
* [ Juvenal, Satires, xiii. 191-2:
quod vindida
Nemo magis gaudet quamfemina-
[For coparitionem read comparati0nem.Tb.]
* On Dig.
XXVIH. vi
12. on the
basis of that
text.
c On Dig.
XXIX. ii. 20,
5-
Li, 4.
*OnDig.
XXXI. X3DQV,
6, el. 2.
On Feuds,
Bk.Li, 4 .
11 /&&., no. 14.
10* Dig.
XXVIII. vi.
12, last col.,
near begin-
ning.
1 On Dig.
XLVII.x.17,
11.
11.38.
at the begin-
ning.
-TE-]
3i6
A Treatise on Military Matters
[PartX
0njDfc.II.
xiv. 30, at the
beginning,
which he
reads with II.
adv. 38, 2.
CM .Dig.
XLVILx.i;,
"
* On Code 11.
iv. 12, towards
end of Com-
mentary.
* Dcfretals t V.
xxxix. 9 and
36.
* On Decretals
V. xxxix. 36.
* According to
Decretals^ V.
xxxvii. 2 (ac-
cording to one
reading).
* On Decretals
V. xxxix. 9.
*OnFeuds,
DO. 6.
i Ox Feuds,
Bk.II.53,
00.5.
Aside from these two cases, a more stable peace is negotiated by
the father regarding injury to a son, than by the son in person. For,
as Paolo di Castro* points out, a father undertakes the business of making
peace with more foresight and wisdom than the son himself. And, in
fact, if a statute requires peace at the hands of the injured person, no
value would attach to a peace secured from the son unless it were
secured from the father as well, according to Paolo di Castro. 13 (I should
think, however, that the wording of the statute ought to be looked
into ; for as a matter of fact the father is one person and the son another,
and statutes deal with facts and not with fictions. Unless we were to
say that because of their close relationship father and son are the same
person, and both really are injured as a result of the injury to the son.)
Angelas states, however, that peace made by the father does not suffice,
unless the statute so specifies; and this seems to me correct.
And Angelus adds here that the son cannot in turn remit an injury 60
done to the father; but understand this as applying while the father
is still living.
Like a father, an abbot with his chapter may make peace in regard 61
to an injury done to a monk of his, as Baldus d pointed out. And this is
not surprising; for injury is done to the monastery, too, just as in the
case of a church when its pastor is injured. 6
So Panormitanus* states that the bishop takes action in the case of 62
the killing of a priest. And if action is brought under the civil law,
one-half of the fine falls to the church ruled by the priest, and the
remainder to the bishop. 6 [139] Panormitanus 11 adds also that, in the
case of a secular church, action lor injury is open both to church and to
pastor, and that one action will not be nullified by the other.
And he says, too, that if a priest who holds several churches be
killed, the question is raised whether the injury was done with a view
to any one of them in particular, and whether the priest held one by
permanent appointment, and a second in trust. In this case action will
be instituted by the one held through permanent appointment. But if
the injury was done on account of both churches, each will bring
action. In addition to the above considerations, I think that it should
be taken into account in which parish the injury was inflicted (sup-
posing the priest to reside a part of the year in one, and another part of
the year in another).
Consuls, syndics, and civil officers may not thus adjust injury done 63
to a state, the support of a general authorization being required. So
Baldus, 1 who cites Digest, XLIII. xxiv. 3, 4. He touches also on the
question whether a lord may bring action for injury done to a vassal
of Bis, or remit it; and he here makes a distinction between injury to
purse and to person. 1
It is customary also to raise the question whether those who are 64
Chap. II]
and Warfare
3 1 ?
merely natural sons may prosecute for a father's death, or even make
peace regarding it. This point is considered by Innocent, 8 and more fully
by Bartolus b and Baldus ; e and they agree that such sons are not debarred
especially if there is no doubt as to their paternity (for they say the
same also of bastards). Yet legitimate sons are by all means to be pre-
ferred; and perhaps, further, if such are in existence, the others would
be excluded.*
As a matter of fact, Bartolus 6 says that a natural daughter also will
have the same rights. And this renders less doubtful what was said
above of a legitimate daughter, namely that she may make peace.
However, I do not feel at all sure with regard to these decisions, so far
as they concern peace-making, especially if the natural child is not an
heir, and there are living relatives and agnates (perhaps of high stand-
ing), whose interest is involved; for, as above noted, an injury often
affects the whole agnatic group. Hence I should think that the natural
children might prosecute, but not make peace. This I leave to the
decision of the reader.
65 I raise a questioi). also about another case that often obtrudes.
Titius gives Seius an insulting blow, e.g. he slaps him, or strikes him
with a cane a thing which military men resent much more fiercely
than if they had been wounded with a sword.
66 Peace negotiations are begun between the two. Says Seius: 'I
demand that he put himself in my hands, and at my discretion.' The
question is whether that sort of agreement is valid; and, supposing the
agreement to be made, 1 what punishment it is permissible for Seius to
exact from the said Titius I
As to the first point, Bartolus renders the decision that such agree-
ment is neither permissible nor valid, even though it be the custom
to proceed in that way in the state or city in question, as was the case
at Pisa. So Bartolus. 1 And the expknation is that a person may not put
himself [139'] in the hands of another for punishment because that
business pertains to the public administration of justice, which is not
supplanted by a private agreement. And on this ground Baldus 8 says
that such a pact is not valid because it would allow an individual to
impose the law's penalty upon the offender; and this he repeats. 11
Bartolus 1 says, again, that (assuming such a case in fact, and that it
is sustained) Seius, the offended party, will nevertheless not be allowed
to exceed the bounds in the matter of punishment; and if he does
so, he will be liable to punishment himself. For, says Bartolus, Titius
is assumed to have surrendered with a presumption of fair and just
treatment as measured by the conscience of a good man.
67 This bears on the second part of the question ; and it brings to mind
the rule that if a person throws himself upon the generosity of any one,
1 [For itoemmat read ita anamiai. TR.]
a On Decretals
I. iii. 28.
b On Dig.
XLVIII. ii. 2.
c On Code IX.
i. i, my second
col., the words
quo ad secun-
dum arlicuhm.
XLVIII. v. 2,
8 ; and Code,
IX. ix. 19.
6 On Dig.
XLVIII, ii. 2,
the words
quid defilia*
* On Die.
XLVII. x.
E On Code IV.
xxxiv. 6.
tica, following
Code II. xxvi.
ii (Sacramento,
pubentm), at
the very be-
ginning,
XLVIL x.
318
A Treatise on Military Matters
[PartX
a On Decretals
I, ix. 13.
b On Feuds,
Bk. II. Iv,
5, no. 14.
xii. 31.
e Cwwi7w,Bk.
1-33, col. i.
* Constitu-
tions of
Clement II.
xi. 2, no. 6.
* Decretum, I.
2.6,5 3, at
end.
4, col. 4, the
word declara-
k Consttium
gento), cols.
i and 2.
he cannot then be made subject to bodily injury. For, by reason of the
very fact that he so abandons himself, it is taken for granted that he
does it in order that favour might be shown.
The same is true when a person puts himself at another's disposi- 68
tion, according to Innocent; 5 and he is reported and followed by de
Afflictis. b And in case the other party chooses to abuse the opportunity 69
put into his hands, the victim should be restored to his original earlier
status. So de Afflictis; c and Imolensis made the statement more specific-
ally (though he does not quote de Afflictis) on Digest XL VI. v. n
where he explains why we allow wider scope when a person submits
to the decision of a third party, than if he were making surrender to
the will of his adversary, namely that we are less sympathetic and more
prejudiced with reference to a matter that touches us than to one that
concerns another. This is a natural and obvious explanation.
These considerations have a very direct application to the matter
of warfare, in view of the problem presented by those men who surren-
der, and, being no longer able to hold the post assigned to them,
give themselves up at discretion some of whom at times are hanged,
while others are sent away to the galleys. This is devilish 'discre- 70
tion', and an illegal proceeding; for discretion, too, presupposes the
standard of the conscience of a good man, as is stated by Baldus* and
Alexander. 6
Finally, I raise the question whether parties may be forced to make 71
peace. In Decretum I. xc. 9, it is stated that they may be, even under
pain of excommunication. The Cardinal 1 also declares that the Pope has 72
power to compel sovereigns to make peace (adding that this is shown
more clearly in Decretals II. i. 13); others, he says, may be so coerced
by their judges. 5
Bartolus, 11 too, said that a judge may constrain parties to harmony
and peace, after they have contended long particularly if they are
causing disturbance to the state; but not otherwise. But without
qualification this is within the power of a council of decurions, or of
one to whom they commit 1 the public welfare and everything con-
cerning it; so Bartolus. 1 The general subject is treated in the Digest}
[140] Query: If a sovereign has granted amnesty to rebels, either in 73
general or specifically, does this include indirect subjects, especially if
their property has previously been delivered over and incorporated
with the fiscus of the immediate lord ? Petrus de Ancharano k considers
this question, and decides that it does not include them; though in
such a case reinstatement would be granted them as a matter of favour,
and at the request of their partyof course, if such action was not pre-
judicial to the immediate lord, e.g. a vassal [of the sovereign]. Hence,
in a public and general amnesty that is incident to a peace and looks to
1 [For ipsae committerct probably read ipsi commtterent.Tn.]
Chap. II]
and Warfare
the welfare of the state, I think that such persons should be included,
especially when the words of the pact might allow of such inclusion.
74 ^ De Ancharano a raises also the question whether such reinstatement
includes rebels who died during the progress of the war, and also their
property, so that the legal heirs (or even such as are named in a will)
may recover it. He concludes that a will made null through crime
does not regain its validity (on the ground that last acts are immutable),
and so the heirs will not secure the property.
Yet, in the case of the compacts many times made between the
Emperor Charles and, subsequently, by King Philip, his son, with the
King of France, wherein it was provided that amnesty be granted to
the exiles of both parties, and that their property be restored to them,
I have frequently witnessed the indiscriminate restoration of property,
i.e. both to the heirs of the dead 1 and to the living exiles. And this
seemed to me very just; for thus the heirs (who had done no wrong)
were made to fare no worse than actual offenders. 11 And with this last
point even de Ancharano is in harmony, in Consilium 287, where he
says that the will of a defunct rebel is ratified if drawn up by a rebel
clerk, because through reinstatement there is general reversal, and all
previous actions are confirmed.
Baldus has a discriminating Consilium* on this subject, wherein he
says that the wills are ratified, and that this is a concession based on the
peace; for whatever the contracting parties agree upon has the force
of law.
75 I raise still another question: The King of Hungary made peace
with the Republic of Venice; 2 and, among other things, it was agreed
that before a certain date the Venetians should withdraw from all the
territory occupied 3 during that war, and that they should not keep any
soldiers or officials within certain boundaries. The question is whether
individual Venetians also were under obligation to leave estates which
they held by private right within those bounds; 4 further, whether it
was permissible for a city or town within those limits to choose a
Venetian as its magistrate (assuming that it had the right to make a
choice). On being consulted, Petrus de Ancharano gave it as his answer
to the two questions that private parties were not obliged to withdraw,
and that they might be elected to office. 4
76 I now take up another query: A sovereign by [140'] manifesto
states that Titius has offended seriously against himself, his majesty,
and his dominion, and, in particular, by assisting 5 the enemy with
supplies, arms, and personal service; 'In view of which action*, he says,
*I have appropriated his property as forfeit to my fiscus, and have
1 [For defuudorum read defunetorum.Tz.]
a [Sunday, Februaiy 25, 1358. The treaty was signed, 'Vetutiis in Ecdesia S. Marc?. Louis I
'the Great' (1326-1382), was King of Hungary. ED,] 3 [For usurpctus^ read uswpatis. TX]
* [For comUs read limites* TR J 5 [For wit read WB& J Ta.1
1 Ibid.
words.
c Consilia,
Bk.I,243,
Quidam ndbilis
nonaw
Antonius.
liim t 204, be-
ginning: Visis
et ponderatis*
320
A Treatise on Military Matters
[Part X
a Consitium
410.
b Cols. 13 and
14.
c On Decretals
II. six. 7.
II. xx. 8.
c On Feuds,
BLLxxii,
2 throughout.
the words
haecdisputatio.
B Ibid., on 2.
* Last col. but
one.
3 The former,
colijthe
latter, col. 7.
iiUjXLVIII.
xvi, 15, with
comment by
Bartolus ; so
Felirms, fol-
lowing others,
at great length
presented it to Gaius, my faithful servant'. The point at issue is
whether the action of the sovereign should be recognized as valid.
Decio a goes into this question very fully, and in connexion with an even
more favourable case; for it had been provided by a local decree that,
for treason, all property should be forfeit to the fiscus, and therein
absorbed without any formality and declaration. Yet Decio concludes
that the above presentation by the sovereign was not valid. He
rendered the same decision in Consilia 446* and 544, repeating in 606, 77
In all these passages he makes use of the same arguments; namely
(i) that recognition should not be given this claim of the sovereign as
accruing to his own advantage; (2) that a vassal is not deprived of his
fief unless guilt is proved; (3) that a sentence is invalid, if pronounced
hastily and offhand, as he puts it ('which is manifest 5 , says he, 'because in
the same connexion and at the same moment the sovereign charged
rebellion and gave away the property') ; (4) that the charge reported
could not have been known to the sovereign except through the
hearsay of others, and such unsworn witness should not have been
relied upon. This line of argument was followed also by Calderinus
and Antonius de Butrio, c as Felinus d reports.
But d'Isernia, who is cited by Decio, seems to me to dissent. 6 For
after long discussion he reaches the conclusion that formal sentence
normally is essential/ but no sentence is required and the claim of the
sovereign is recognized as binding, if the charge is such as to be clear
to a judge, acting as such (as in the case of a thing done in the presence
of a judge, or with the lord sitting at the tribunal), or if the charge
concerns a long continued or even immediately manifest activity (as,
he says, is true of a man who in time of war keeps in frequent touch
with the enemy and helps them, or of one who holds his castle in a
state of rebellion against the lord, or who according to de Afflictis*
has emblazoned thereon the arms and heraldry of the enemy).
De Afflictis agrees, 11 following Jacopo Alvarotto. 1 And both
d'Isernia and de Afflictis add 1 that it is a good thing that a public
instrument be executed touching guilt thus charged, so that the fact
regarding it may be in evidence later. But I do not see what help there
would be in this; for in case they refer to the original manifesto of the
sovereign, it is beyond doubt that this is regularly put into writing,
and we therefore revert again to the arguments of Decio which urge 78
that the claim should not be recognized as binding: and if they mean
that an instrument [141] should be executed as to the crime itself, there
is a difficulty, because it is stated that in regard to crime a con-
demnatory instrument may not be executed. 1 " (However, such a pre-
caution would be useful when, in formal trial of a case, witnesses were
being examined; for this would be a very reliable support.)
Nevertheless, on the basis even of the simple manifesto of the
Chap. II]
and Warfare
321
sovereign I think that the person is secure to whom the property is given
in the two cases singled out by d'Isernia and others, namely when a
charge is made with reference to a repeated (even if not continuous)
activity, or to action immediately manifest; (but not so in the case of
a charge advanced regarding a past activity, according to de Afflictis. a )
And the Doctors compare here what Baldus said in his Consilia*
79 when consulted in regard to an actual case. For he there declares that
if the Emperor states specifically the reason for his order, we must
abide by the words set down in conformity with his will so that there
is no room for argument to the contrary, according to Cino; but if he
has made use of general expressions, there will be indeed a presumption
in favour of what he said and did, yet there will be room also for
argument to the contrary.
And so Baldus there assumes that if the Emperor stated that some
one had shown ingratitude to him, and for that reason he deprives him
of his fief, proof of ingratitude is not essential Support for this is sup-
plied by Petrus de Ancharano, who says that if the Emperor advisedly
bases an order on such a charge, this affirmation of fact has the same
weight as an order of his based on certain knowledge.
Further support is found in the remarks of de Ancharano again
80 in his Consilia* where he holds that in the case of notorious rebels of
this kind it is permissible to begin with execution of the penalty, con-
fiscating their property and giving it away, and allowing formal action
to follow. This side of the argument is further strengthened by a
statement of de Afflictis 6 to the effect that it is the right of a sovereign
to despoil a notorious rebel, or even to delegate such execution to
another, and that against the beneficiary in such a case the person
despoiled has access to no edict or means whereby to recover* (How-
, ever, he is speaking of a case that is clearer in view of an enactment
which in the kingdom referred to deals with this matter to the dis-
advantage of rebels of the kind in question; but it was operative also
at Milan in that case discussed by Decio.')
Our conclusion, then, will be that in regard to an accusation of
action immediately manifest, or occasional, if not continuous, there will
be adherence to the order of a sovereign supported by his manifesto.
But if it be a charge touching action that is momentary, either (i) the
action took place in the presence of the lord himself (as was said of
the action which takes place in the presence [I41 1 ] of the judge seated at
his tribunal), and then our procedure will be the same; or (2) it took
place in his absence, or perhaps it is even reported as having taken place
in the past, and then what Decio 8 said mil apply. But even in this
case, if the supreme sovereign is concerned, and in the exercise of his
absolute power he has so made a statement and issued an order, here, too,
1 [Apparently 410 is the number referred to. TR.
On 2 (above
cited), col. 6,
the words
idem si
vosolluSy and
on Feuds,
Bk. II, chap.
xx, last col.
but one.
t
(Quaerilur si
rex Romano-
rum), last col.
but one, the
prinape.
Consfiium
293, beginning:
Ultra alia, the
* Constlium
277, beginning:
Ex praedicta
faeti narra-
tions ; repeated
in 439 (C w
plenefacta
serif).
* On Feuds,
Bk. II, chap.
xxvii,7,
no. 15.
410, above
cited.
above cited.
1569.64
Tt
322
A Treatise on Military Matters
[PartX
8 Consilium,
445, above
cited.
b 295 [cited
above as 293],
Constitutions,
of Clement,
II. vii. i.
d Consilium
410, above
cited.
6 On Decretals
IL xx. 28,
1 Consilium
154-
Bk.III.4,
col. 3.
i, gloss begin-
ning: 1mm
> On Dig.
XXXVI. i. n,
2j the words
hoc est quod
multum.
J Ibid., last col.
k In gloss on
addit. of
Giovanni
d'Andrea.
1 On Feuds,
Preface, gloss
Aliqua sed
paucadc
prinape, the
words ft quia
m Trad. Qui
Sini RekUcs,
in gloss rebel-
lands, near the
middle.
we must bow to his verdict, in view of Consilium 328 of Baldus above
cited (to which Decio a so rejoins, though he quotes under another
number), and in view of the above-mentioned Consilium of Petrus de
Ancharano, b
(This, however, I think must be limited to the sovereign par 81
excellence* i.e. the supreme ruler, excluding all of lower rank. For in
the case of the latter perhaps such procedure will not hold, as was
pointed out by Decio. d Felinus 6 discusses at length, and expresses strong
doubt regarding the verdict of the Cardinal, 1 wherein the latter takes
the affirmative view, even in regard to sovereigns of lower grade, but
who have sovereign rights within their sphere. Socini, 6 however, sides
with the Cardinal.
And this distinction between the supreme sovereign and some
inferior ruler I support by a statement of Angelus 11 to the effect that by
rescript, sentence, or epistolary message, the Emperor is assumed to
enact law, whereas no one beneath him has such power, though a king
also will enjoy this privilege. That statement is reported and adopted
by Alexander; 1 and Jason, 1 too, supports it at length.
And this rule holds even though the ruler be vicegerent of the 82
Emperor, because the general dignity and power of the Emperor are
greater than those of the vicegerent in particular. And in such case
there will be no application for the rule of Digest VI. i. 76, as is shown
by a passage in Sext III. iv. 14, where it is held that there are grada-
tions in authority; and the explanation is there given* that a gushing
spring is greater than the stream which it feeds. And Baldus, 1 too, cites
that passage to this effect.)
Add further to what has been said above, that if a question 83
regarding goods so presented should happen to arise between the
former owner and the person who holds them by contract from the
Emperor or even by simple gift for example, if one party declares he
never committed such 2 a crime, and the other in turn insists that it
really was committed the claims of both will have to be taken under
advisement, and he 3 will be awarded the verdict who makes the better
showing. So we gather from the remarks of Bartolus: m 'for in view of
the fact that the law itself imposes so severe a penalty upon them,
there should be the privilege of demanding that such a person be pro-
claimed a rebel; and, on the other hand, a man who feels that he has
been wronged by such a charge should be able to demand that it be
officially declared that he is not such. 3
He expresses himself more plainly towards the end of the [142]
gloss above referred to, where he says: 'the question is raised whether 84
it is permissible to kill a person who is secretly a rebel/ And he
1 [For antonomastid read autkonowastice. TR.]
1 [Tor idem read tote Taj
\Foittla
Chap. II]
and Warfare
3 2 3
answers in the affirmative, on the ground that the man by his very act
incurs the penalty, adding that in the investigation of the homicide
the truth will emerge regarding this charge of rebellion; and he is
cited to this effect by Petrus de Ancharano.* This is a sweeping rule
that because of having been accused of this crime (even though not
overt), a man may be killed, and the homicide justified later on the basis
of subsequent proofs. In regard to our present topic this needs to be
carefully emphasized, in view of the treatment of Decio, b who held that
in these days there can be no prosecution for mere rebellion.
And the verdict of Bartolus above recorded conflicts sharply with
the Consilia of Decio previously cited. 1 For if such rebels may be
killed, even before their guilt is proved, how much more, in the case of
accusation of crime, will it be possible to take away a man's property
and transfer it to another at least to the point of allowing the latter
to justify the confiscation by new evidence, when 2 the fact of the crime
is again brought into question ?
85 I now touch another point. The people of Genoa and of Pisa
engaged in a long-continued war, and at length made a truce to last
twenty-five years, and thence onward to include 3 two years after the
time either party elected to renew the war, and with the provision that
the people of Pisa should not receive exiles and rebels of the Genoese.
It is queried whether this should be understood as referring only to
persons who were rebels at the time when the compact was made, or
also to those who afterward became such.
Consulted in regard to this in an actual case, Angelus ruled that
only those are included who were such at the time of the agreement. 6
However, he is speaking of a case where the truce had been so far pro-
longed that all the persons had died who were living at the time of the
agreement; for a hundred years had elapsed.
Again, he limits his remark to cases where the arrangement was
not reciprocal. For, according to him, the verdict would be otherwise,
if the above agreement had been entered into by both sides with
regard to not receiving exiles; for under such circumstances it extends
throughout the whole duration of the truce.
86 He raises a further question: 4 Suppose that a person was an exile
at the time of the truce, that he was reinstated, and, after his return
home, he was exiled again because of the development of a new
provocation. Would he be included in the terms of the truce and that
prohibitive clause f This point Angelus leaves undecided.
87 He adds, however, that in Code VIII. xxv. 1 1, there seems to be
ground 4 for not including such exiles ; but that law proves nothing. For
e no. 76. TK.] z [For qwnto read guando. Tn.]
T " j uncertain ; duraturum is probably for duratwas. TR.]
j doubtful. TR.J
a Consiliitm
277, col. 2, at
end.
b Consilium
410, last col.
butone,no,26.
See his
Consilium 261,
(Thema prae-
d Ibid, at end.
A Treatise on Military Matters
[PartX
[On Code
VIII. xxv. ii J
b Ibid.
Ccnsilium
35beg
Quidam
nobilis.
xxacv. I.
Ctanftz,
Bk.II.1%
Prctctnussis
votes.
there are two explanations of it, as Albericus there points out: first,
that when a person mortgages what he has and what he shall acquire,
he cannot be thought of as referring to present possessions that will be
alienated and reacquired; for inasmuch as they were included at the
time in the pledge made regarding present possessions, it cannot be
assumed that he was also thinking of them as future acquisitions.
The second view is that such future acquisitions are included
because, on the strength of the agreement, they are assumed to have
been in possession at the time the pledge was made, [142^ the effect
being retroversive. But along with that fiction we note that the
creditor's consent to alienation was secured; hence those reacquisitions
are not included in view of said consent. But these considerations do
not apply to our present problem.
More to the point is the situation in a question touched on by 88
Albericus there, a regarding the permission which a creditor granted to
a soldier of the Emperor to absent himself, despite the fact that he had
taken oath not to withdraw until he had made payment. For if, after
taking advantage of this permission, the man should return, he again
reverts to the state of former obligation not to withdraw. So I should
judge with reference to the exile in question. See the arguments cited
by Albericus there. b
Changing the subject, I now raise another question: A certain 89
nobleman in time of war said to a friend of his, C I put this stronghold
of mine in your charge'. What shall we say is conveyed by these
words ? Let us assume that it is understood that the defence of the
stronghold is put in the friend's hands. In that case he will look after
everything that concerns its safety; and, consequently, if it were 90
necessary, in view of this trust, to do anything calling for the exercise 1
of absolute authority, it would betaken for granted that this too was
covered by his commission (assuming that the lord himself had such
powers).
Hence, if the guards and garrison do wrong, or perhaps attempt
betrayal, it would be his right to punish them. Likewise he is em-
powered to hire soldiers needed for defence and to pay their wages at
the expense of the lord, or even at his own; and all that he pays out
he will recover from the lord. So Angelus. 6
But Baldus* takes another view. For he says that it should be 91
considered that it was an agency that was conferred upon the man, and
that he should make report of crimes to the lord. Yet this same writer, 6
speaking of the commander of two war-vessels, declares that that
officer has jurisdiction over his men after the manner of a military
chief; also that with regard to the enemy he holds the power of life
and death at any rate in actual practice.
1 [For esferdium read exercitium. TR .]
Chap. II]
and Warfare
3 2 5
Alexander,* too, declared that a custodian's position is a mere
92 agency, without jurisdiction. Bartolus b also remarked that the captain
of the guard may in moderate degree punish offenders, but that he
should refer the graver cases to the lord. On this there is a clear
passage in Code I. xliii. I; and I think this position safer than that of
Angelus or rather, that the words of the latter regarding the exercise
of absolute power should be understood and qualified in the light of the
above statement of Bartolus. In further support of this consult Lucas
de Penna.
93 I now inquire whether the aforesaid custodian becomes liable to
any punishment in case he loses the stronghold intrusted to him. Make
a distinction according as he lost it through carelessness and neglect, 1
in which case his fault beyond question is great. For, as the Gospel
says, d the keeper of the gate is commanded to watch; and from the
very name of his office he should know what is expected of him. 6 [143]
94 For, being guardian of the stronghold, he should see to it that he
continue to be what he is/ And such persons should beware of the
95 anger of the Emperor; for with him all punishments are discretionary.
In fact at his order I have known a soldier to be beheaded who fell
asleep while guarding a prisoner of great importance who was being
conducted to the Emperor; for while the soldier slept, the prisoner
escaped. And although sleep is a natural 2 contingency that cannot be
resisted (for no one can keep awake all the time), still sleep is no excuse
96 in a case of real dereliction; so Baldus. g
Further, it is stated in a gloss h that when a person is bound to make
good a defence by virtue of the office assigned to him, he is not excused
because of accident that befalls, unless he demonstrates his freedom
from blame. The post-glossators comment on Digest IL xiii. 6, 9,
and Lucas de Penna 1 goes so far as to say that a custodian is responsible
97 for defence at the peril of his life, adding 1 that he who receives a salary
for such service is responsible even for unavoidable losses.
Oldradus, moreover, considers this subject more at length in a
98 Consilium* where he raises the question whether it is permissible for
a man commissioned by a king to substitute another for himself; and, if
he does so and the substitute loses the stronghold, what will the result
be ? And, according to Oldradus, if he substituted a nobleman, he will
be excused, even if his substitute incurred the loss through his own
fault; but if he substituted a common person, he is not excused. This,
Oldradus says, is the practice of the nobles in his country, and he
declares 3 that it is in harmony with the kw, finding support in Digest
XLVIII. iii. 14, near the beginning; and this view is cited with
approval by Felinus. 1
1 [The alternative is taken up below in another form (see no. 98 ff.). TR.]
2 [For naturalis read nalurale. TR.] 3 [For d read dial. TR.]
On, Dig. II. i.
i, first words.
b On Dig. I.
xv. i.
IX. 2, COl. 2.
* [St. Mark,
sii. 34-]
Codt,!.
xxviii. i.
*Code,I.\v.$.
t On Dig. I. xv.
3, i, last
words*
XXXLxxxii,
5-
1 Cafe XII.
lx.2,col-3.
Ubid., last col.
but one,
Rex habebai
tastrum.
1 On Decretals
V. xil 17,
col. i, and
Jtenft&V.i.
16, at end.
326
* As above,
C Z)Z. XLVIIL
iii. 14, 2;
XLVIIL iii.
41.
Dig. XLVIIL
iii. 12, near
end.
3-
* Consilium 92,
at end.
Durandus, on
rubi.De Locate
et Condufto.
i On Code TV.
xxxii. 17,
col. z.
4, 4, no, 17.
Lwa., above
1 0* Code XII.
k.2.
0nrabr.
liv^ col. 2.
AH.
A Treatise on Military Matters
[PartX
However, the custodian will not be obliged to submit his choice
of substitute to the king, since it suffices that the man be commonly
judged satisfactory at the time of appointment. So Oldradus here.*
But if the man himself delegated by the king has lost a stronghold,
and that too by design, he is certainly inexcusable; so also if the loss
resulted from serious dereliction.* And in fact he will be held respon-
sible for a slight fault even very slight, but his punishment will not
be as severe. But if he is guilty of no fault (e.g. if the loss resulted from
the attack of an overwhelming force), there are laws to exonerate him. d
For therein we read that watchfulness is small security against over- 99
whelming force.
Oldradus, moreover, makes the distinction: (i) Fault preceded 100
disaster, and then without doubt the disaster is not excused. 1 For
suppose that the custodian fails to make proper provision for supplies,
fortification, or arms; or suppose that, like the majority of castle-
commanders, he falsifies the muster roll with the idea of embezzling
pay and for these reasons his post is lost; surely he will be deserving of
heavy [143'] punishment: or (2) No fault preceded, and then it would
seem that he ought to be acquitted. 6
Hence also Baldus said 1 that the impossible must not be required 101
of custodians. But even in this case Oldradus 8 declares that the
custodian will still be liable according to rules in force among nobles,
i.e. according to custom. For, says he, inasmuch as the king assigned 102
the trust to the man in time of war and in the face of impending force,
he seems by right to be held liable even against such attack: compare
Code, IV. xxiii. I, where Jacobus of Arezzo so reports on the remarks of
Oldradus there. His words are transcribed by Giovanni d' Andrea,* in
his usual fashion.
And d' Andrea adds that it gravely prejudices the castle-com-
mander's case that he undertakes a defence in time of war, whereby it
seems to have been tacitly agreed that his defence would be of such a
character as not to yield even before overwhelming force.
He says also that he had heard that it was ruled in court that a
castle-commander who has substituted another is excused, if the latter
was a nobleman,
Moreover, what is said of a man who has undertaken the defence
of a castle in time of war is confirmed by the statement of the Doctors
that release is not granted a person who has undertaken a contract while
war was in progress.
Giovanni d'Andrea.*
Ou this see Baldus 1 and Alexander,' who cites
Lucas de Penna 1 also said that a hired custodian is liable for 103
unavoidable losses; and he declares" 1 that such a one is bound to resist
overwhelming odds, but with the qualification:" 'so far as he is able'.
1 [For aceusat read excusaiw. TR.]
Chap. II]
and Warfare
And if this rule is honestly interpreted and acted upon, I think that it
will satisfy any lord. For no obligation requires impossibilities, and
it would be suicidal to say otherwise. In fact rulers would not be able
to find custodians on other terms. And he who has done his best has
fulfilled the law.
The above mentioned principles I myself at one time applied to
the case of Joannes Baptista Furnarius of Genoa, who had been made
commander of a garrison at Alba (which was my original home), He
was ordered by the army head to give over the defence of that city and
to come to him; but because of an illness (feigned, or perhaps real) he
neither came nor relinquished his commission.
Meanwhile the French took the city by a surprise attack, at a time
when Furnarius had substituted, as supervisor of the watch and defence,
a certain Ricius de Lechio Regnicola, an unknown and untried man,
to whom probably he would not have intrusted a thousand crowns for
delivery at Genoa. Furnarius himself, while imprisoned, and during
the trial of his case at the city of Alessandria, made his escape from
there, being in fear for his life.
Therefore, the commanders of strongholds should have a care,
and they should ponder long (to quote the poet)
'What weight the shoulders bear, under what they sink.'*
For, with thoughts centred upon advancement and gain, they rashly
imperil their lives. [144] Thus, I have personally known of a custodian
of the citadel of Valenza, near Alessandria, who was executed for sur-
rendering his post to the French, though the latter had arrived in great
force, against which it was perhaps impossible for him to hold out.
104 Under this head there is also a noteworthy case in regard to which
Oldradus gave an opinion. The King of Spain assigned the care of
certain forts of the Templars to a commander of the Order of
Alcdntara. 1 The Pope (or his agent and representative) directed this
commander to restore the forts in question to the Templars, above
mentioned. The man refused to make restoration to them, but de-
livered the forts to the King, for which action he was excommuni-
cated. In this case Oldradus argues, for the defence, that the man
should have been absolved, because it was his duty to consult his honour
and to regard the obligation he had undertaken to the King. And
this view he supports by many arguments.
105 Furthermore, those who surrender their posts (even when an
overwhelming force threatens, which they cannot resist) should beware
of accepting money (for the opposing commanders often are willing to
pay a great price, in order to save time and to avoid the uncertain
issue of chance), lest there befall them the fate which Boerius b says
1 [For Altdlara read Alcantara. ED.]
a [Horace, Ars
Poeiica, 39 ff.]
Claviutn
Portarum
00.25.
328 A Treatise on Military Matters [Part X
overtook a certain Frenchman, who 1 surrendered his post to the Genoese;
and, though he thought to receive money at Lyons from a money-
changer and banker, he was decapitated, and his dead body was placed
on the wheel. I urged the same penalty also for a certain soldier who
had surrendered to the enemy the citadel of Ivrea 2 which had been put
in his charge, receiving some hundreds of crowns on the score of
supplies and food which he claimed he had in that stronghold. But
the general did not take that view of the case.
Boerius also warns a that commanders of strongholds should beware 106
of talking (or of giving ear to talk) about surrender; and his advice is
good. For such giving of ear is half-surrender; for, as the common saying
has it, 'The castle that parleys is half 3 surrendered'.
He said, too, another thing worthy of note, namely that if the 107
custodian of a stronghold has given security for its safety, and it chances
to be lost, the bondsman is not held to the payment of the sum named
in the bond, but only to the extent of the loss. For this he cites Dynus. b
'' * I5 " Certain other points regarding this matter of custodians of strong-
*DeCasuiknis holds are treated by Martinus Laudensis, who holds the view that I
dCflrtrw,qu. jj^ state( j a b ove j n regard to cases where fault precedes disaster.
In his tenth question he adds that a man who has given security 108
for the custodian of a stronghold is not liable, if the latter betrays his
post. He cites Albericus on Digest XII, iii. I, where he says this; and
a passage in Code XI. xxxv. I, seems to support that view. However,
it is my opinion that the terms of the bargain and agreement should be
closely examined. But in no case will bondsmen be liable to corporal
punishment: for it would be absurd that one man should be beaten for
the wrongdoing of another.
Under question 21, Laudensis states that a fortress-commander 109
who suffers the enemy to devastate the district should be burned alive.
But this must 4 be understood, according to the law which he cites, in
cases where the man had an understanding and traitorous [144 7 ] agree-
ment with the enemy on this point, or shared with them in the plunder.
For under other circumstances, even though he neglected to defend his
boundaries, I should not think that such drastic punishment wascalledfor.
He says also, in question 26,* that a stronghold-commander who,
on news of the approach of the enemy, takes to flight and abandons his no
post, ought to be severely punished. He cites Aiigelus on Digest IV.
ii. 9, near the beginning, where he states that these officers should not
flee at the sound of the trumpet and drum, but that they should await
a siege, and defend themselves manfully; but if the enemy attack in
overwhelming force, they are exonerated, if they retire. 6 So Angelus.
This should be understood in the light of the nature of the man's post
1 [For cm read qui. TR,] a [Surrendered to the French, 1544. ED,]
3 [Reading uncertain. TR.] * [For lebet read debet. TR.]
Chap. II]
and Warfare
3 2 9
and the provision that he be not held to impossibilities. For he who
does what any good man in the same situation would do, seems to me
to have fulfilled his duty in the sight of God and man. (This is very
much a matter of judgement with the general and the sovereign; and
they should be reasonable. 81 )
The further question is raised: If a statute punishes a crime and
injury committed in the night time, but revokes the penalty if peace
is arranged between the parties; assuming that peace is made regarding
it, but with no mention that the crime was committed at night (as
actually happened in a case), would the peace benefit the offender ?
In his Consilia* Baldus says that it does; see his reasons there.
[ He discusses also another question worthy of note: If peace has
been made, with a promise not to do injury to person or property,
under a penalty of a hundred [crowns] to be incurred 'as often as ; ,
and with bondsmen given; suppose now 1 that members of one party
kill an individual of the other, and sack and plunder his home; is a
double penalty incurred (i.e. for homicide and for looting) ?
Baldus concludes that a distinction should be recognized. For (i)
the plundering preceded the homicide, and then the penalty is
repeated, or (2) the homicide preceded, and the penalty is incurred but
once. The argument in the second case is that the peace is broken by
the personal injury; therefore, it cannot be further broken, being non-
existent. 2 Again, the contract of the peace is brought to an end by
death. Again, one who is dead can no longer suffer theft or injury; and
this is true also of the inheritance not yet claimed. 11 However, if the
plundering instantly 3 follows the murder, before the homicides turn
aside to other activities, they incur double guilt and a double penalty.
So Baldus here.
In regard to this question I should think that a further distinction
ought to be made. For suppose that there are many contracting parties
on either side, as Baldus there takes for granted in describing the case:
if one individual was killed, are not the others injured also in respect
to the plundering which follows the murder ? And if they are injured,
and if the plundering is a violation of that provision whereby it was
agreed not to injure even in the matter of property, is it not more just
and equable to say that the penalty is incurred twice ?
Nor is his reasoning conclusive where he says that the peace is
broken and nullified, and, consequently, [145]* that it cannot be further
contravened. For in view of that phrase 'to be incurred as often as', &c.,
the penalty may be incurred repeatedly, especially in the person of the
actual offender. 6
Furthermore, in the case referred to by Baldus above discussed, I
1 [For ex info read escindt. TR.]
3 [For incontinenfi read incontincnte* TR.]
1569.64
2 [mUum j perhaps for nuHa> T&.]
* [For p. 146 read p. 145. TR.]
a See [Corneo],
Cotirilia,
Bk. IV, 148,
[beginning]:
deciswn&m.
beginning:
Videtur miM
Bal
Consilia,
Propomiur
quod inter
quosdam
iv. i, 15.
Alexander,
Consilia,
and Corneo,
Consitia, Bk.
II. 40, above
cited.
33
A Treatise on Military Matters
[PartX
XLVII, 11.69
and 64.
III. 8 (Circa
primuw), end
of col. 2 ; Bk.
IV,.i4S,
beginning:
dedsionem,
last col. but
one, no. 8.
[i.e.
387J
think 1 that we ought to take into consideration how the articles of
peace were worded. For if injury done to the person or property of
an individual of one party constituted an offence to all the members
of that party (as the nature of the situation suggests), then, even though
punishment be not incurred on account of the plundering of his
property after his death (from the point of view that it is not subject
D^.XLVii. to t h e ft or plundering, because the inheritance is not yet daimed), a
still injury would be done to the survivors 3 of that party; and, with
regard to their injury the penalty would be incurred, For this peace 112
is a unity as respects all the contracting parties, and 3 there is not a
separate peace for each person included in an agreement, as Corneo*
has pointed out. These points touching the above Consilium* of Baldus 113
seem to me to be worthy of consideration.
I raise another question.: 4 In that Consilium Baldus states that
theft cannot be practised upon an inheritance not yet claimed. This
is a very old dictum, and Trebatius thought that it was everywhere
unquestioned; consequently he made fun of Cicero for saying that
there had been a difference of opinion about it among the ancients.
Cicero defends himself by showing that Sextus Aelius, Manius 5
Manilius and Marcus Brutus dissented though Cicero himself sides
with Scaevola and Trebatius against them. So we read in a letter of
his to Trebatius. d
Yet it seems strange that neither theft nor plundering can be
practised upon an inheritance not yet taken up, e and, for that reason,
not even after taking it up will the heir prosecute for theft, 1 though he
may bring action for pillaged inheritance (both points being established, 114
according to Bartolus, in Digest XLI. Hi. 35, though Paolo di Castro
dissents). On the other hand, however, if violence or underhand
practice befalls the property willed during the time before the inherit-
ance is taken up, the heir, after taking it up, may have recourse to
the interdict quod vi aut clam? Again, action is granted under the 115
the Aquilian Law for loss inflicted before an inheritance is taken up
(Digest IX. ii. 43) a ground for action which a gloss there recognizes, 116
and explains by saying: 'Theft and the Aquilian Law have to do with
different things'. This explanation is in harmony with the view of
Bartolus, 11 who does not set the laws cited in opposition, but says that
theft is not effected while an inheritance is yet unclaimed, for the
reason that theft is a seizure against the owner's will; whereas in the
case supposed no one is the owner. 6
Florianus 1 takes issue with Bartolus, because, while an inheritance
is still unclaimed, action for theft then committed is allowed [145^ to a
His Friends^
VII. xxii].
XXV. ii. 6,
6;XLVII.ii.
69; XLI. 1,33,
xxiv.13,55.
XLVH. ii. 69,
ii.43.
1 [For utpiito read ut puto.ln.]
a [For a/ read cudem. TR.]
* [For Afm/iwn read ^HI/JMW. TR.]
2 [For super extaniibus read superextanlihis. TR.]
4 [Reading doubtful at this point. TR J
6 [domi.-, i.e. dminus. TR.]
Chap. II]
and Warfare
33 1
person who at that time holds the property as a loan, to a fructuary,
or to one who has a mortgage upon the estate though these persons
are not owners.
But this is no fair criticism. For it is not only an owner that brings
action for theft, but any one to whose interest it is on legal grounds
that the property be not stolen." It is not strange, therefore, that in
those three cases action is allowed.
Florianus himself offers the explanation that the reason for the
difference lies in the fact of possession itself. For so long as the
inheritance is not taken up, no one is in possession ; b and, apart from
possession or holding, it is impossible for theft to be effected. But to me
this explanation is not at all conclusive. For a possessor no more appears
in the cases where action is given under the Aquilian Law or the inter-
dict than when it is granted under the praetorian law or for theft.
As a matter of fact, the passage in Digest XLIII. xxiv. 13, 5,
seems to discredit the explanations both of Bartolus and Florianus.
For it is there stated that the interdict is available for the reason that
the inheritance occupies the room of an owner. Thus the true
explanation is gathered from Digest, IX. ii. 43, namely, that the
Aquilian Law gives Ownership 3 a wider meaning than do the Laws of
the Twelve Tables; for it has in mind, not the person who was owner
at the time the loss was inflicted, but at the time action is brought on
account of the loss. And this is favoured by considerations of justice
lest otherwise the party who suffered loss be deprived of action and
relief, inasmuch as no other action is open to him on the score of
his loss.
But as for theft in particular, although, to preserve the inflexibility
of the law, action for this is not granted, yet the owner does not lack
other recourses. For he may bring action for pillaged 1 inheritance
(either to recover his due, or to enforce the legal penalty), and he may
sue for the production and reclamation of property. Florianus* added
that action by stipulation is possible on the basis of Code VIII. iv. i ;
and property may be regained by suit to recover inheritance. 6 It is not
strange, therefore, that, with so many recourses provided, the heir is
shut off from one with a view, as I have said, to preserving the
inflexibility of the law.
j The post-glossators obscure Digest XLL iii. 35 also, though its
meaning is clear and manifest. For Julianus there raises the question
whether a slave whose usufruct was willed is subject to usucapion, if
he is stolen while the inheritance is not yet taken up. Julianus recog-
nizes a distinction: (i) action for theft is open, 2 and usucapion is pre-
cluded; or (2) such action is not open, and usucapion is possible.
It is dear that the heir cannot bring action for theft, and the
1 [exp&de, i.e. expiktae.--Tb.]
flfcXLVIL
ii, 10, ii, 12,
86, and 93.
iv. i, 15.
"Z% XLVII.
xix. 2 ; Code
IX. xxxii. 6.
43, last words.
'Cafe VIII.
332 A Treatise on Military Matters [Part x
question therefore concerns the fructuary; thus (i) his right to use was
already acquired at the time the theft was perpetrated, and he will
bring action for theft, and, consequently, usucapion will be checked;
or (2) he did not then have the right to use, and he will not bring
action for theft, and usucapion will not be precluded.
Here it is assumed that he has the right to use at the time the
^XXjjj inheritance is taken up, and security is given by the heir ; a but if he not
24. * ' merely had the right to use, but actually was using, then action for
theft will be brought not only by him, but also by the owner and heir.
And in this way we should understand Digest, XL VII. ii. 70 and 71,
when it states that when a thing is stolen of which another has [146]
the usufruct, the heir brings action for theft namely, if the thing was
stolen after usufruct began.
This seems to me the true explanation of Digest XLI. iii. 35;
though Paolo di Castro there declares that Bartolus explained it badly
(and he himself, perhaps, even more confusedly). The other matters
there considered in a gloss are outside the scope of this law, namely,
whether there could be a case where action for theft is possible, and yet
the property be subject to usucapion; or, on the contrary, a case where
action for theft is precluded, and yet usucapion would be prohibited.
For it suffices that the rule is that usucapion is precluded, if there is
any one to bring action for theft; and that it is possible, in case there is
no one who can bring such action. On this both Julianus and Sabinus
agree.
Bk^nfa' ^ e f^ ow i n S question is raised by Corneo*: Many enemies 118
belonging to one party have made peace with a corresponding number
of a second party, sanctioning a severe punishment for violators. There
is also a statute in that state which directs that the accomplice of a
wrongdoer be penalized a hundredfold. Now Titius, one of the
enemies above mentioned, with the help of Seius, also one of the said
contracting parties, kills Sempronius, with whom they had made
peace. Will Seius be liable 1 to the penalty for breaking the peace on the
basis of his own crime, and likewise to the penalty of an accomplice, as
prescribed by the statute?
Corneo there concludes that Seius will be liable only for the
penally ^imposed by the pact. For one and the same person cannot be 119
both principal and accessory; and, again, because he would be punished
e la comment more severely for giving assistance than as principal which would be 120
Smii. 3 6, a k sur d; an 4 7 et *&*&, because a lesser crime is swallowed up in a
3. ' greater (which I think is true when one crime is closely connected with
d Tm* THfs,l~*J jjL j^1_ "F* /" 1 /" T i i 11
. nr ; ^ e Ot ^ er - ^ or **" ^7 were f di yers e character, the greater would not
orutn Moienti) 11 11* . n . . .
in gloss (etd. swallow up the less, except in cases where penalty is not cumulative.
m&f. smper go Baldus, and Anffdus* 2 follows).
ojfr.)j at the '
beguiling. * [For Unetitwr ne read tenetttwne. TR.] 2 [Angelus of Arezzo. ED.]
Chap. II]
and Warfare
333
121
122
He also there raises the question: If some third person (say
Gains) gave aid to both in the matter of the said homicide, would he
be liable to the penalty of the statute twice (as accomplice of Titius,
and likewise of Seius), or would he be liable once only? And he con-
cludes that the man will be liable but once.
Again, he considers there whether the aforesaid Gaius, as an
accomplice, is liable to the penalty for breaking the peace, supposing
him to be in ignorance of the pact. And he concludes that he is not
liable, on the ground that when an accomplice is penalized very
severely because of some antecedent condition, the penalty is not
exacted, if the offender did not know of that condition.
On this matter of the offender's knowledge, however, he admits
123 that he feels much doubt. And as to the question when the attitude of
mind of the wrongdoer is taken into consideration, with a view either to
increasing or lessening the penalty, see Bartolus on Digest, XL VIII.
viiL 14, and XLVII. s. 15, where Alexander also comments. 8
And since many of the questions above treated bear rather upon
private amity and peace than upon that of states, I subjoin some
remarks about the former by way of a supplement, and to round out
my subject.
124 In the first place, we should recognize that, although hostilities
arise from injury and offence, [146 7 ] it is necessary, however, that
immediately, upon their perpetration, these injuries be given attention 1
by the person affected ; otherwise he will lose all right to sue for injury.
So states the Jurisconsult 2 in Digest, XLVII. x. II. I, and so the
Emperor Justinian. 15
125 Moreover, if a person has thus given attention to injury, and
later displays tokens of reconciliation and peace, it is assumed that the
12 6 injury is forgiven. So the Doctors, and Baldus in particular. The
following tokens and evidences of reconciliation are listed :^
(1) If the injured party takes no action for a year since suit for
injury is precluded by neglect and inaction for that length of time. d
(2) If a person takes the matter to court and uses this means for
the punishment of the injury, he will have foresworn all other redress
if such be available either through written law or by custom. So
Digest, XLVII. x. 17, 6, where, according to Jason, e we should add:
'unless it is specifically provided that any other available recourse be left
unprejudiced*.
About such provision I am much in doubt, ^specially it the
methods of punishment in question are not cumulative or concurrent
(for, in such a case by chosing one recourse, it is counted that a man
renounces his claim to the other); for what avail is there in a provisioa
that does not accord with fact ?'
"-InAddit.to
Baldus, on
Code I. iii. 5,
col. 3.
.
<= Owfc IE.
xxxvi. 5.
* Code, IX..
XLVII. x, 17,
6, with com-
ment in gloss;
Fdinus on
Decretals II.
xxv. 8, col. 6.
xiv. i.
i Decretals, IL
xxviii. 54, at
end; Dfc.
XIX.ii.6o,
6;andlmo-
lensis and all
Doctors on
[rewcare; perhaps for revocm. T
* [Ulpiam ED.] i. 8, 6, col. 3.
334
A Treatise on Military Matters
[PartX
b So Baldus, on
JWfr XXVIII.
ii. 23 ; and
Alexander and
Joannes of
Imola, ibid.
c Baldus, On
Code 111.
xxxvi. 5.
^ On Dig. II
xiv.x 7 ,i;
Dig. XLVII.
x. ii, i, with
Alexander
also in addil.
xiv. 17, i.
*0n Dig. II.
xiv. i, no, 10.
*Consilia>
Bk.II,i68,
Requistius ui
brgtriter dicam-,
already cited
above at
another point
Dtcretols, V.
av.2;V.
XXIV. 2.
'Gwsflw,
BUI. 343,
(3) It is sure evidence of peace if the two people shake hands, this
being a familiar symbol of friendly greeting. So Paolo di Castro and
other Doctors on Digest II. xiv. I, where they add the comment, that
if an instrument reads 'Titius and Seius have come to an agreement in
regard to their unfriendly relations', 1 it is understood that they have
made peace. This I believe is true, in case the document is duly
executed and contains nothing else (for otherwise 'agreement' might
allow of various interpretations). Hence if there are no other words in
the document, it would be better to interpret as above; whereas if
other words are added, or the instrument was not duly executed, the case
would be otherwise,
(4.) If they drink in company; so Alexander. 4 This must be judged
in the light of the circumstances. For if the men drink together by
themselves at the same table, reconciliation is taken for granted and
much more, if they drink from the same cup. But if two enemies meet
with many others at table (e.g. at a banquet), I should not think that
the mere drinking together or fraternizing ought to be considered a
sure indication of restored friendship.
(5) And if they salute one another, or (according to the fashion
of the day) if they doff hat or cap to one another with bared head, b this
is counted an evidence of friendship.
(6) Much more is reconciliation and peace taken for granted, if
they converse together, and still more if they render mutual services
and courtesies to one another,
[147] 2 Whether it is to be counted that reconciliation has been made 127
by forgiveness of injury in a sacramental or penitential confession is a
question treated by Bartolus d and all the post-glossators. e The general 3
verdict is that the injury is not regarded as condoned, but merely that
ill-will is laid aside, together with any unseemly thirst for revenge.
And much less is it assumed that there is remission of whatever
losses were incurred as a result of the injury. So Jason, 1 who says also
that not even on the basis of peace made (and that, too, a peace
embodied in an official document) is it counted that there is cancella-
tion of the right to reclaim property which was open to the injured
party for the recovery of goods seized or in any other way taken posses-
sion of unlawfully. He cites Alexander, 5 who rightly thus concludes
and affirms, with argument at length.
And the following points are to be noted on the subject of 128
duelling. For although the duel is frowned on by the law 11 whence 129
Baldus 1 adds that challenging to a duel is a sort of madness inconsistent
with all humanity and repugnant to all natural reason, and that it 130
should be a last recourse as is developed at greater length by those
Domine.
J [For habebat read habebant.^.
a [For p. 148 read p. H7.- TR.]
tier, i.e. communiter. TR].
Chap. II]
and Warfare
335
who have written treatises on the subject (e.g. Giovanni de Legnano,
Paris de Puteo, and lately Alciati), lest rules be lacking for an accursed
institution, and in order that men may practice insanity with a system
(though the comic poet a thought this impossible) material which I
have been unwilling to incorporate in this treatise, not wishing to
weight it down and amplify it too much, and not to confound private
feuds, which derive their inspiration straight from Hell, with public
warfare, which is an outgrowth of the law of nations and allowed by
divine law, and which has as its goal peace and the general good.
These treatises, I say, make for the very cause of duelling, which 1
the perverse madness of men has developed into an institution. Hence
131 Baldus b said that duelling is not counted unlawful, because it has
been evolved through general practice.
132 Yet, on the other hand, Baldus c states that, even when fought to
vindicate innocence, the duel is very repugnant to the laws, because it
makes trial of God, and because we see many perish thereby whose
cause is just. Hence even in the Lombard law (the code under which
duelling developed) it was a case of excusing a thing which was of
necessity allowed; for, in view of the customs of the nation, duelling
could not be prohibited. This is like what was said of divorce, a namely
that from the beginning it was not so; but that it was tolerated because
of the hardness 2 of heart of the Jews.
133 And what Baldus says of custom to me does not seem to excuse
those who engage in duels ; for no lapse of time serves [147'] to legitimize
a custom provocative of wrongdoing. For every law (even the un-
written laws, to which class belong the customs and practices of men)
should be just, fair, and reasonable.
And what justice or reason is there in two men undertaking to
determine by arms which is the more just, which the better, which the
more innocent ? There is no more logic in this than if two lawyers or
two philosophers should cross swords to determine which was the more
learned. Further, what is more unfair, what more unfitting than that
an innocent man (and one who, as often happens, is handicapped in the
matter of age and strength) should be pitted against some bold fellow,
his superior in brute force ?
But since the matter does not interest sovereigns, especially in this
unfortunate and desolated Italy of ours (which a multitude of masters
has made a tributary, nay, rather a slave, after being mistress of the
world), let us at any rate, so far as we can, lop some branches from the
accursed tree.
Well then, in view of the fact that associates and friends are apt
playfully to bubble over, 3 and in sportiveness to say to one another
"[Terence, The
Eunuch,
62 fit.]
xxxiv. 6, last
words.
c On mbr.
Cade, VII. v,
near end,
* Si. Matthew,
xix [8].
1 [quam ; perhaps a slip for quod. TR.]
2 [duridentt i.e. duritim. TR,]
1 [effudst, i.e, effutiant TR.]
336
A Treatise on Military Matters
[Part X
xxxvi. 5.
10, with the
common rules.
* OH Dig.
XXXIV. iv. 3,
ii ; and Dig.
XXXIV. iv- 4.
* On Dig.
XXVIII. ii.
2 3-
many a word without thought or serious intent, and to indulge in
numerous other like actions in case a person who feels himself insulted
thereby does not at once give attention to them, he will thereafter
have no right to challenge to a duel, nor to avenge the injury.
And far less will he have such right, if subsequently the parties
concerned engage jointly in games, drinking, greeting, or conversation,
or any other such-like act. In fact he will not have such right, even
though the person who gave offence did so with intent and in anger;
for none the less on that account will the above evidences make for
reconciliation, and for a check upon challenging to a duel
But, reader, rest assured of one thing. On the basis of no incon- 134
elusive evidence is it assumed that injury and offence are condoned in
cases where a person has formally taken notice of the same. For, as I
believe, the proofs must be genuine, applicable, and also unmistakable
not casual, inconclusive, and equivocal. For when a purpose and
attitude of mind are once adopted, the presumption is that they con-
tinue, as Baldus said, a unless on conclusive evidence they are shown to
have been changed.
For an equivocal demonstration, which lends itself to either view, 135
is of no weight. 15 There is a noteworthy and peculiar case in Digest, 136
XXVIII. ii. 23 ; for it is therein stated of a son whom his father has
disinherited, emancipated, and finally adopted, that the fact of 137
adoption does not mean that the original offence is remitted or the
disinheritance cancelled.
This seemed strange to Baldus and to every one else, to judge from
their comments there; for in view of the fact that indications of
renewed goodwill on the part of a father cancel disinheritance (as
Bartolus stated, on the basis of the laws he cites), who would not have
thought that adoption is such an evidence ?
In agreement with Baldus, Paolo di Castro d explains this difficulty
by saying that, inasmuch as renunciations of control by the father did
not furnish the basis for disinheritance, it is not strange that the
resumption of that control does not have the opposite effect. This
explanation does not solve the difficulty.
[148] In the lecture of Paolo di Castro on this passage still another
explanation is suggested, namely that the son in question is not counted
as adopted, since he is a son by birth, and in view of the fact that
fiction gives way in the face of fact. Hence adoption reinstated h ; m in
the position he had previously held when emancipated; no wonder
therefore that the disinheritance is not revoked under which he was
then suffering. But not even this takes into account the presumptive
reconciliation; for disinheritance is revoked by evidences of changed
attitude, as Bartolus held.
Paolo himself (with Alexander following) offers the explanation
Chap. II] and Warfare 337
that the validity of the father's will is the key to the situation. For if
the disinheritance were cancelled as a result of the adoption, it would
mean that the son had been passed over [in the will], and the will
would become invalid, 1 To me this seems very strange and incongruous
that the feeling which the testator has for the validity of his will
should be stronger and more potent 2 than paternal affection.
Imola here* offers the explanation that the disinheritance holds #?
because it was a formal matter, and it is not annulled in the will by a
subsequent act that is less formal. In support of this he cites Digest,
XXVIII. v. 21, I, but Alexander with reason dissents. For adoption,
too, is a formal act; and even a formal will is revoked in favour of
another less formal involving children only. b b c ?*> VI -
Perhaps the explanation which I gave above is the true one, xxm - 2I so-
namely that the token and evidence of subsequent relenting must be
decisive and not equivocal ; conclusive and not vague. Now his action
in adoption 3 is equivocal, and to the son himself unfavourable and
prejudicial. For he loses his freedom, and falls again under another's
control; and it is conceivable that the father might have adopted him
even while retaining his sense of injury, e.g. 4 that the son might more
easily be disciplined. 5 (So, in turn, the fact of emancipation is favour-
able to a son in that through it he gains independence and many other
advantages.)
1 [The meaning apparently being that, the disinheritance clause being cancelled, the TO!! becomes
invalid because it fails either to disinherit the son or to mention him as a legal heir. ED.]
2 [efficatior, i.e. effitaaor.Ti.] 3 [For adoptions read adoptionis* TR,]
* [For scilicet read scilicet. TR.]
5 [For eastigaret read castigaretur ; or iorflius read filmm. TR.]
1569-64 I x
[148']
HERE BEGINS
THE ELEVENTH PART OF THE WORK
SOLE CHAPTER
ON HOSTAGES
SYNOPSIS
1 What hostages are.
2 Hostages; whence the institution,
3 Women too are given as hostages.
4 Why hostages are given.
5 Hostages lose status.
6 The initial stage must be considered,
7 The more noble persons of the party
giving security are selected as hostages.
8 Hostages are given by the inferior to the
more worthy.
9 A free man may be given as a hostage.
10 A man who by the laws has the right
to maintain a prison is not guilty of
the act of private imprisonment.
11 Private citizens may not give hostages.
12 Hostages are given even in money deal-
ings. But understand as here ex-
plained.
13 Cities may give hostages.
14 A private person may consent to be
given under oath as a hostage.
15 The Pope gives a member of the clergy
as a hostage.
16 It is different with a bishop, who will
not give such a hostage.
17 An abbot may give one of his monks as
a hostage.
1 8 However, a monk so given shall not be
retained against his will,
19 A father cannot give a son as hostage.
20 Hostages may be given even against
their will.
21 A sovereign and an independent people
may lawfully deprive a subject of his
property.
22 A member of the clergy may not be
given as hostage against his will. But
understand this as here explained.
[149] IN view of the fact that hostages usually are associated with
1 peace, some remarks upon them are in order. Hostages are free men
2 given into the power of the other party as security for the keeping of
compacts. This institution (like war, enslavement, and postliminy) is
an outgrowth of the law of nations, according to Baldus. a
3 Moreover, not only men, but also women and girls are given as
hostages, as shown by a passage in Livy,* wherein he relates that Cloelia
and some other maidens were surrendered as hostages to Porsena by
the Romans. But, crossing the Tiber 1 by swimming, they made their
escape to Rome. And Tacitus says of Tiridates, the Parthian, King of
Armenia : 'meanwhile he surrendered his daughter as a hostage/
4 For the most part hostages are given by enemies to secure a peace
and compact made; or a surrender, or other 2 agreements and obligations.
But they are given also between allies and confederates (to make the
contracting parties more sure that agreements will be kept), as is
indicated by a passage in the Commentaries of Caesar: 3 * 'And since 7 ,
says he, 'for the time being they could not take security from one
another in the way of hostages not to betray the matter, they sealed
the compact with an oath-bound promise'.
1 [For TtfcnYread Tiberi. TR.]
2 [For alto $ read a&aoK. TR.] 3 [Ces.> i-fi Ctws(flr). TR.]
341
xliii. 2, the
obsides.
b [II. mi. 4 ft]
xv
* Gallic W or,
VII H.
342
A Treatise on Military Matters
[Part XI
xiv.3ij
XXVIII. i. 8,
at the begin-
ning; and
XXVIII. i. n.
b Dig. XLIX.
xiv. 32.
On Dig.
XXVIII. i. n.
v. 24, i, -with
comment by
Bartolus.
xxxi-4.]
J [Tacitus,
Under the Roman law, hostages lost status, and became the slaves 5
of those to whom they were surrendered, as is shown by regulations in
the/)igrt.* (At times, however, they regained the use of the toga, and
then they could make valid wills, and were in a sense free. Jt} )
Now Baldus raises the question why those of the enemy who are
surrendered as security after peace has now been made thus become
slaves. Angelus d offers an explanation by distinguishing as follows: (i)
They are surrendered by people who are enemies in the strict sense of
the word (such as are the Turks in their relations with us), and then
they are slaves; or (2) They are exchanged between people who are not
enemies in the strict sense of the term 2 (as when Christians are at war
with one another), and then they do not become slaves.
But this explanation does not solve the difficulty. And the same
is true of what Imolensis e (following Angelus) says, namely that the
reference is to hostages given by outside peoples, according to Digest,
XLIX. xv. 5, 2; for this remark, in addition to the fact that it goes
no farther towards the solution of the difficulty, is erroneous as well.
For those cannot be called 'outside peoples' with whom we engage in
war and afterwards make a peace pact. f
A gloss on Digest XXVIII. i. II states that the reference is to
hostages given for the making of peace, or with reference to the keeping
of a peace already made. It is this last that prompts the query of
Baldus.
It might be answered that at the time when negotiations were in
progress [149'] as to terms and hostages, the persons in question were
still enemies; and that in this, as in many things, the initial stage is the 6
decisive factor . g (For the motive for giving hostages is not the pact or
the peace, but hostility and a fear that the terms will not be observed.)
Or, again, we might assume that this was a practice originally intro-
duced by custom, falling back upon Digest, I. in. 20 and 21.
Again, it is customary to give as hostages the most distinguished 7
persons of the nation which supplies them. Thus we read in Tacitus*
how, during the reign of Tiberius, ambassadors from the Parthians
requested that Phraates, son of King Phraates, who had for some time
been held at Rome as a hostage, be given to them as king, to displace
Artabanus who was ruling barbarously in their country. So, too, in the
reign of Claudius 1 other ambassadors secured the return of Meherdates,
who also was of the Arsacid line, which was their royal family.
Further, hostages are usually given to the more worthy and power- 8
fid, and to those who are superior in dignity and strength. This is very
clearly shown by a passage in Caesar ; J for when he had asked that hostages
be given him by the Helvetians, they replied that it had been their
practice from time immemorial to receive hostages, not to give them.
1 [tiberum, i.e. liberorum. TR.]
* [For impropriae read improprie.
and Warfare
343
a On Decretals
II. xxiv, 9.
9 The Doctors raise the question whether a free man may be sur-
rendered as a hostage; and Panormitanus* distinguishes according as
the person whose surrender is in question is a layman or a member of
the clergy. In the first case: 1 (i) The man is surrendered by those who
have the right to declare war, and then the surrender is valid; but the
hostage loses status and becomes a slave. (This, however, must be
understood of dealings between others than Christians; for since among
them captives do not become slaves, much less will this happen to
hostages) ; or (2) The surrender is arranged between parties of less
authority, and then the transaction is not valid, the victim does not
lose status, nor does he become a pawn either. For that too is a sort of
slavery, and suggestive of private imprisonment which is an abomina-
tion to the laws.
In this last subdivision his treatment lacks precision and finish.
For we ought to recognize a dividing line between rulers (even of
10 inferior rank) and all private persons whatsoever. For it cannot be
said of a ruler, even lower than the highest, that his is a private prison,
though he may maintain one that is arbitrary and vicious. And
although rulers of this sort, not having the right to declare war (as was
shown above), have not the right to give hostages either (this being
contingent upon war and peace pacts), still it would be difficult to
maintain that even they can not give them, in view of the fact that they
arrogate to themselves many other rights not allowed bylaw. And this is
the meaning of the remark of Bartolus b to the effect that the practice has
sprung up of allowing one city to give hostages to another, though they
do not lose status.
11 But among private citizens I think that, without exception,
hostages cannot lawfully be given; and, if given even with their own
consent, I hold that they are not under any obligation; for, as Panormi-
tanus said, this is a sort of imprisonment, to which no one may obligate
himself, as the Doctors generally agree.
The above view finds support in what is said [150] in the passages jody.'m. 14,
cited, and in a gloss on Decretwn IL xxiii. 8. 18, though the Doctors
commonly quote the canon immediately preceding in support of the 2.
view that hostages are given for state reasons (e.g. to assure peace), but
12 not for financial security; for this last must be understood and
interpreted as limited to the pecuniary interests of private parties, but
not of sovereigns. For even in our times we have known Francis, King
of the French, to give his sons as hostages for the interim, when he was
released by the Emperor Charles under promise of a large sum of
money, with payment deferred to a certain date.
13 And as for the claim above that a practice had sprung up of
cities giving their people as hostages to other cities, this was justified
1 [The other case is taken up below in another way ; see no. 14, at end. TR."]
XXVIII. i.i i.
1.71,
344
A Treatise on Military Matters
[Part XI
a Last col. but
one, the words
* On Dig.
XXVIII. i. n.
d On Code IV.
xliii. 2, the
words ulterius
nuniquid
obsides.
* On Cod* IV.
xliii. 2.
* On Decretals
II. xxiv. 9.
xHii, 2.
l no. 14.
* Aft, 00. 14
at end, the
words id fiiam
quodexpublica
by Paulus on Decretals II. xxiv. 9,* as well as by Innocent ;* but for
state reasons (e.g. to assure peace) and not for financial security, as was
stated also by Imolensis c and Baldus. d For although such hostages will
not be slaves, yet, says he, they will be in a sort of old-fashioned
hostageship ; and, 1 since this is a corollary of war (just like enslavement),
the whole finds justification in the law of nations itself.
Again, as to my statement that the consent of a person who has 14
allowed himself to be given as a hostage in a private cause does not
bind him, I believe that this is subject to the following qualification:
unless he has put himself under oath. For in that case perhaps regard
for the oath will hold him, even though the rule for hostages does not
so operate. So we may gather from Demtum II. xxiii, 8. 18: ('lest in
any particular your spirit or ours suffer trouble with respect to oaths') ;
and there is confirmation in the common rules as to an oath, which
should be kept whenever this can be done without peril to salvation. 6
However, Baldus f says that when hostages are given between
private parties, they are not in pawn nor are they forced to be slaves,
and yet, says he, they are retained by virtue of their consent; but they
can be reclaimed to full liberty by their superior or even by their
father; and they may also take such action themselves, if they have
been given as hostages without their own consent. But in the cases of
which he is speaking (i.e. between merely private citizens) I think that
these points are not well taken, in view of what I have said above.
I have considered laymen; now I pass to the clergy, regarding
whom Panormitanus g says that the Pope may lawfully give a member of 15
the clergy as a hostage, and that the man will be truly such. But, says
he, the same does not hold true so far as a bishop is concerned, even if 16
the clergyman himself consents. For the latter will be at liberty to
withdraw when he chooses, provided, however, that he has not given
an oath-bound promise.
Furthermore, as he says there, it is permissible for an abbot, in the 17
interest of his monastery, to give a monk of his as hostage, even against
the man's will; and the monk will be bound to remain in a definite
place agreed upon, and will be kept there even against his will because
of the abbot's assent.
But Baldus h claims that the monk cannot be held against his will; 18
and to this I agree. For if it is not permissible for a father to give his 19
son as hostage (as all the Doctors agree; see Baldus 1 here, and Ripa on
Digest XX. i. 6, 1 where he discusses this subject), [150'] it can hardly
be true that the power of the abbot over a monk is greater.
But when Ripa k states that hostages cannot be given, even for 20
adequate reasons, against their will, perhaps such a sweeping verdict
is not sound. For suppose that nobody would consent to be given; will
1 [Reading quac for yum. Tft.]
and Warfare 345
not 1 peace and the public welfare suffer ? It is better, therefore, to
assume that those are given, even though they be unwilling and reluctant,
whom the people 2 (presupposing its authority) 3 or the sovereign shall
have chosen. There is confirmation for this in the text and subject-
matter of Digest XXI. ii. n, with the comments by Angelus and
others on Digest II. xiv. 5, and by Angelus again on Digest, VIII. iv.
21 13, I. And Alexander 5 and Decio b argue at length the principle that a ConsiUa,
it is permissible for a free state or a sovereign, in the interest of the ^ IIy .^ 9 '
i_v ir i T i i ri Connbum
public weliare, to deprive an individual citizen 01 Jus property. 520, cols, i
22 In regard to the clergy, however, Panormitanus says that they may md 2 -
not be given as hostages against their will; and that he who retains one
of them against his will would fall under the penalty QiDecretum, II.
xvii. 4. 29. This, too, I think is not true, in case the man was selected
by the Pope. For it would be assumed that he had granted the party
receiving the hostage a dispensation covering the penalty of the canon
cited. This topic I do not pursue further.
And herewith I make an end of my treatise. If any good thing has
been said therein, it should be credited to the Creator of man and of
knowledge. Whatever is incorrect or imperfect may well be ascribed 4
to the fallibility 5 and limited powers of the author, who will lend a ready
ear to those who have corrections and improvements to suggest.
1 [For non ne read nonne.Tz.] 2 [For $opuk$ r
3 [For auctorita e read auctoritate.Tn.]
4 [egre, i.e. aegre, TR.] 5 [For imbedlitatem read imbedttitate. TR.]
THE END
1569.64 T j
VENICE: BY FRANCISCUS DE PORTONARIIS,
IN THE YEAR OF OUR LORD MDLXIII.
THE EIGHTH OF MAY.
INDEXES
INDEX OF AUTHORS CITED
Abbas, See Panorm.it anus.
Accursius (c. 1182-1260), Bolognese jurist,
23, 2 4> 2 7-
On Authentic a, 12 (bis).
On Code, 20,21.
On Digest, 225 (bis), 236.
Aelius, Sextus Paetus Catus (curule aedile,
200 B.C.), Roman jurist, 330.
Afflictis, Matthaeus de (Matteo d'Afflitto,
1448-1528), Neapolitan jurist.
On Feuds (Commentarius super tres libros
feudorum), 8, 65 (bis), 67, 68, 70, 12 1,
141, 228, 281 (bis), 285,298, 318 (bis),
320 (ter), 321 (ter).
Agricola, Georgius (Georg Bauer, c. 1490-
J 55S)> Saxon mineralogist and
physician.
De mensuris et ponderibus Romanorum
atque Graecorum, 175.
Alberico de Rosate (Roxiati, d. 1534),
Bergamese jurist.
On Authentic^ 284.
On Code (Lectura aurea super codice), 47,
94, in, 266, 272 (bis), 324 (ter).
On Digest, 76, 115, 142, 150 (quater), 151
(ter), 285, 299, 328.
Summarium on Digest, 150.
Alciati, Andrea (1492-1550), Italian jurist,
13, 20, 21, 23 (bis), 24, 25, 26, 29, 174,
335-
Commentary on the three last books of
the Code, 14.
De magistratibus cwilibusque etmilitaribus
^^,28,34,35,41,42.
De praesumptionibus, 221.
On Code, 31,64, 118.
On Digest, 96.
Parerga, 79, 88, 201, 202, 210 (bis), 267.
Alexander (Tartagni) of Imola (1424-1477),
jurist, taught at Padua and Bologna,
163, 283, 313, 336, 337,
Additions to Baldus on Code, 333.
Additions to Bartolus, 83, 98, 241 (bis),
*9> 3*z, 334-
Consilia^ 252 (bis), 259 (quater), 261, 268,
272 (quater), 273, 281, 293, 298, 299,
300, 302, 305 (quater), 310, 313, 318,
32ft 334. 345-
On Code, 138, 167, 310.
On Digest, 107, 118, 130, 135, 164 (bis),
1 88 (bis), 268, 271, 283 (bis), 294, 306,
310 (bis), 314, 315, 322, 325, 326, 334.
Alvarotto, Jacopo (1385-1453), Italian
feudal lawyer.
On Feuds, 68 (bis), 70, 73, 320.
Ambrose, Saint (c. 340-397), Father of the
Church, Bishop of Milan. Quoted in
Deere turn, 1 6.
Ancharano, Petrus de (c. 1330-1416),
canonist, taught at Pavia, Sienna,
Bologna and Ferrara, in.
Consilia, 137 (bis), 153, 155, 273, 318
3 19 (ter), 321 (ter), 322, 323.
On Sext (Lectura super sexto), 224, 297
(bis).
Andrea, Giovanni d' (c. 1275-1348),
canonist, taught at Padua and Bologna,
107, 136,
Additions to Durandus, 76, 115, 138, 285,
304, 326 (bis),
On Decretals, 138.
On Sext, 79, 290.
Andreas Siculus. See Barbazza, Andreas.
Angelus Baldi (Baldeschi Perusinus, d. c.
1407), brother of Baldus (q.v,), Peru-
gian jurist, 256, 258, 281, 284, 325.
Consilia, 83, 255, 256, 295, 323 (bis), 324.
Disputations, 7, 98, 99,
On Authentica, 191.
On Code, 106, 281.
On Digest, 76, 94, 98, 120, 126, 142, 144,
170, 171, 185, 186, 239 (bis), 246,
259, 260 (bis), 263, 268 (bis), 281, 282,
283 (bis), 290 (bis), 296, 308, 309 (bis),
311, 312 (ter), 315 (bis), 316, 322, 328,
34 2 > 345 (bis).
Angelus de Clavasio (Angelo Carletti, d.
1493), Italian Franciscan theologian.
Summa casuum swe summa Angelica, 83,
296, 297.
Angelus [de Gambilionibus] of Arezzo
(Aretinus, d. 1451), jurist, taught at
Ferrara and Bologna.
In maleficiorum materia, 265, 332.
Antibolus, Petrus (fl. c. I549 ? )-
De muneribus, 191.
Antoninus, Saint (Antonio di ser Niccolo di
Pierozzo de Forciglioni, 1389-1459),
35
Index of Authors Cited
Antoninus, Saint (cant.).
Dominican theologian, Archbishop of
Florence.
Summa, 64, 84, 139.
Aquinas. See Thomas Aquinas, Saint.
Archbishop [of Florence], See Antoninus,
Saint.
Archdeacon [of Bologna]. See Baysio, Guido
de.
Aretinus (Francesco Accolti, c. 141 8-c. 1485),
Italian jurist, taught at Bologna and
Pisa.
Consilia, 141, 179.
On Digest, 7 (bis), nr, 115 (bis), 224
(bis).
Arezzo, Jacobus of. See Jacobus of Arezzo.
Asconius Pedianus, Quintus (c. 3-c. 88),
Roman critic and commentator, 24.
Astensis. See Summa Astesiana.
Augustine (Aurelius Augustinus), Saint
(354-430), Father of the Church,
Bishop of Hippo. Cited in Deere turn,
62,65.
On the City of God (De cwitate Dei),
131, 279.
Authentic a (following Code), 27 31, 44, 46,
49, 50 (ter), 55 (bis), 56, 62, 154, 178,
179 (ter), 201 (quater), 203, 204, 205
(quater), 212 (bis), 213, 269.
Azo [Azzo; Azolinus], Portius (fl. end of
1 2th beginning of 1 3th centuries),
Bolognese jurist, 84, 302.
Baldus de Ubaldis (1327-1400), Perugian
jurist, 50, 143, 283, 294, 314.
Additions to Durandus, 307.
Consilia, 5, 8, 41, 59, 65, 66, 67 (ter), 75
(ter), 76, 84 (bis), 98, 112 (bis), 115,
121, 126 (bis), 127, 129, 143, 147, 152,
154 (bis), 178 (bis), 187, 189 (ter), 209
(bis), 255, 257 (bis), 258 (ter), 272
(quater), 279, 290, 292 (ter), 300 (bis),
301, 302, 307, 319, 321 (bis), 322, 324,
329 (bis), 330, 334.
De face Constantiae, 62, 69, 144, 152,
279, 280 (bis), 281 (bis), 304.
De quaestionibus et tormentis, 187.
On Authentic^, 79, 83, 161, 317.
On Code, 5 (bis), to (quater), 38, 45, 47,
66, fy, 79 (bis), 83, 88 (bis), 95 (bis), 96
(bis), 99 (bis), 104 (bis), 109, 115, 116,
118 (bis), 122, 123, 124, 125, 126 (bis),
129, 130, 141 (bis), 142 (quater), 143 j
(bis), 144, 154, 156, 169, 171, 181 (ter),
184, 189, 199, 208, 209 (bis), 241, 245,
246, 262 (bis), 266 (bis), 267, 268 (bis),
269 (ter), 284, 290, 291 (bis), 293 (bis),
298 (bis), 299, 302, 305, 306, 309, 313
(bis), 316, 317 (bis), 318, 324, 326,
333, 334, 335 (bis), 336, 3V> 344
(quater).
On Decretals, 59, 292.
On Digest, 6, 40, 45, 68 (ter), 99, 128,
144 (bis), 148, 151, 154, 169, 170, 171,
186, 187, 190, 208, 223, 267, 281, 282,
296, 2 99> 304. 3io, 311 (bis), 315, 325,
326, 332, 334, 336, 342-
On Feuds, 59, 60 (bis), 64 (bis), 65, 66
(bis), 67 (ter), 68, 70, 71 (bis), 72 (bis),
73, 74> 79> H 1 * H3 H9 J 54> V 8 ' l8 ?>
228, 279, 292, 295, 299, 307 (bis), 311,
315, 316 (bis), 322.
Summarium, 148.
Barbazza [de Barbatia], Andreas 'Siculus'
(c. 1399-1479), Bolognese canonist.
Consilia, 292 (quinquies), 297, 303.
Bartholomaeus [of Verona]. See Caepolla,
Bartholomaeus.
Bartolus of Sassoferrato (1313-1356), Peru-
gian jurist, 48, 84, 188, 241, 253 (bis),
283, 323, 33o>332.
Additions, 212, 305.
Consilia, 90, 185 (bis), 279.
On Authentic a, 291, 312 (ter).
On Code, 153, 154, 155 (bis), 161, 185,
187 (ter), 199, 246, 259 (bis), 263, 269,
281, 282 (bis), 291, 293, 300, 309.
On Digest, 6, 7, 9 (quinquies), 10 (bis),
65, 68 (bis), 84, 95, 97, 98, 99, 115 (bis),
118, 126, 128, 129, 130 (bis), 131, 135,
140 (quater), 142 (bis), 143 (bis), 148,
150, 152, 154, 155 (bis), 160, 162, 178,
184, 187, 190, 206 (ter), 209 (ter), 246,
252 (bis), 254 (bis), 257, 258 (bis), 259,
260,, 261, 263, 265 (bis), 266, 267, 268
(ter), 271 (bis), 291, 292 (bis), 293 (bis),
294* 296, 302, 305 (ter), 308, 309 (ter),
311, 312 (ter), 313, 314 (ter), 315 (bis),
317 (quater), 318 (bis), 320, 325, 330,
333 (bis), 334 (bis), 336, 342, 343.
On Extravagantes, 292.
On Reprisals, 8, 80.
Questions, 305.
Tractates, Qui sint relelles, 295, 322.
Baysio, Guido de (d. 1313), canonist,
Archdeacon of Bologna, 139,
Index of Authors Cited
35 1
On Decretum, 12, 81, 82, 91, 135 (bis),
136, 138, 156.
Bellamera, Aegidius (d. 1392), canonist.
Bishop of Lavaur, Le Puy-en-Velay,
and Avignon.
Decisions, 283, 284.
Bellapertica, Petrus (Petrus a Bella Pertica),
156, 253, 299.
Belli, Pierino (1502-1575), Savoyard jurist,
author of the work here translated.
Cross-references, 73, 84, 94, 96 (bis), 116,
117, 120 (bis), 137, 153, 173, 179, 213,
222, 228, 238, 290, 297, 298, 305, 309
(bis), 312 (ter).
Belvisio, Jacobus de (Jacopo de Belviso,
1270-1335), jurist, taught at Perugia
and Padua, 190, 253.
Practica iudiciaria, &c., 55.
Benavides, Marco Mantova (Marcus Man-
tuanus, 1489-1582), Paduan jurist.
De privileges militaribus, 191.
Bible: Old Testament
Genesis, 3, 93.
Numbers, 96, 97, 98 (bis).
Joshua, 96.
1 Samuel, 59, 92 (bis), 93 (bis), 94, 96.
2 Samuel, 8, 92, 189.
1 Kings, 92 (ter).
2 Kings, 61, 92.
2 Chronicles ', 93 (quater), 94, 116.
Esther, 22.
Job, 5, 278.
Psalms, 59, 77, 278 (ter), 291 (bis).
Proverbs, 277.
Isaiah, 278 (bis),
I Maccabees, 82.
Bible: New Testament
St. Matthew, 3, 62, 192, 212, 297, 335.
St. Mark, 325.
St. Luke, 3, 62, 200, 212, 279.
St. John, 93, 278.
Acts of the Apostles, 63.
Romans, 212, 278.
j Corinthians, 278 (bis), 294.
Galatians, 93.
Ephesians, 5 (bis), 93.
I Tbessalonians, 5.
St. James, 5, 278.
Revelation, 3.
Boerius (Nicolas de Bohier, 1469-1539),
French jurist, taught at MontpelHer.
De custodia clavium portarum civitatum,
327, 328.
Brunaldus of Bologna, 239.
Brunus, Conrad (c. 1491-1563), German
jurist.
Consilia, 48, 292, 302.
Bude, Guillaume (Gulielmus Budaeus,
1467-1540), French humanist, 31, 51.
Breviarium assis, 174.
Butrio, Antonius de (1338-1409), Bolognese
canonist.
On Decretals (Commentaria in quinque
Ubros decretalium), 83, 138 (bis), 293
(bis), 320.
Caepolla, Bartholomaeus, of Verona (d.
1474), Italian jurist.
Tractates de imperatore militum deligendo,
J 9-
Caesar, Caius Julius. See Julius Caesar,
Caius.
Cagnazzo, Joannes ('Tabia' = of Taggia;
d. 1521), Italian Dominican theologian.
Summa Summarum de casibus conscientiae
quae Tabiena dicitur (Bologna, 1517),
60,64.
Cajetan (Tomasso Cardinal de Vio, d. 1534),
Italian theologian.
On Clementines, 65.
Summa, 7, 59, 64.
Calcaneus, Laurentius [Lorenzo Calcagni
of Brescia ?]
Consilia, 208.
Calderinus, Joannes (d. 1365), Bolognese
canonist; adoptive son of Joannes
Andrea, 320.
Consilia, 7, 8, 9, 10, 11, 60 (bis), 65, 98,
107, 115, 278.
Canonists.
On Decretals, 48, 59 (bis), 90, 141 (bis),
267, 297.
OuSext, 83, 261.
Cantiuncula, Claudius. See Chansonnette,
Claude.
Capagistus, Gerardus (quoted in Feudomm
Libri), 64, 65.
Cardinal. See Zabarelk, Francesco.
Cassiodorus, Flavius Magnus Aurelius (c.
47O-c. 570), Latin historian.
7ariae, 14.
Castro, Paolo di (d. c. 1441), Italian jurist,
130, 330-
Consilia, 4, 40, 149 (bis), 190, 254, 255,
256, 302.
On Code y 182.
35 2
Index of Authors Cited
Castro, Paolo di (cont.).
On Digest, 130, 135, 35 38, 310, 313,
316 (ter), 332, 334, 336.
Catullus, Cains Valerius (c. 77 B.C.-C. 45
B.C. ?), Roman lyric poet.
Carmine 295.
Celsus, Publius Juventius (fl. 129 Christian
era), Roman jurist quoted in Digest,
22,6.
Chansonnette, Claude (Claudius Canti-
uncula, d. c. 1560) jurist, born at Metz.
De qfficio iudicis, 55.
Chronicles. See Bible, Old Testament.
Cicero. See Tullius Cicero, Marcus.
Cino (Sinibaldi) da Pistoia (1270-1336),
jurist, taught at Perugia and Florence,
156, 180, 209, 281, 284, 299, 314, 321.
OnCW*,75, 143,187, 310.
On Digest, 283.
Clement V, Pope, Constitutions of. See
Corpus luris Canonici.
Clementines. See Corpus luris Canonici.
Codex Justinlani (Code). See Corpus luris
Civilis.
Codex Theodosianus (fifth century), 267.
Collenuccio, Pandolfo (1444-1504), Italian
humanist, historian, and jurist.
History of the Kingdom of Naples, 91.
Comensis. See Raphael of Como.
Comment or Commentator, including
postglossator, 310.
On Authentic^ 265.
On Code, 109, 162, 209, 262.
On Decretals, 64, 94, 154, 262.
On Digest, 282, 311, 325, 331, 334 (bis).
Constitutions of Clement. See Corpus luris
Canonici.
Constitutions of Frederick, 16 (bis).
Corinthians. See Bible, New Testament.
Cornelius Tacitus, Publius (c, A.D. 55-
post A.D. 117), Roman historian.
Annds, 11, 15, 31, 32, 51. 53. 86, *73,
*75, i?9 ( bis )> l8o > 2II > 233 (Ms), 236,
239, 244 (ter), 245, 341, 342 (bis).
Histories, 195, 223, 235, 279.
Corneo, Pietro Filippo (1385-1462), Peru-
gian jurist.
Consilia, 139, 305, 308 (quater), 309
(quater), 313, 329 (bis), 330 (bis), 332.
Corpus luris Canonici.
Clementines (Constitutions of Clement,
dementis Papae V Constitutiones),
211, 322.
Decretals (Decretales Gregorii Papae IX),
81, 82 (bis), 94 (bis), 115, 127, 135, 137,
139, 141, 152, 154, 155 (ter), 161 (bis),
186, 258, 262, 290, 292, 302, 310 (bis),
316 (bis), 318, 325, 333> 334 (bis).
Decretum Gratiani, 7, 8, 16 (bis), 17 (bis),
60, 6l (bis), 62 (quinquies), 63 (bis),
64 (bis), 65 (bis), 8 1 (quinquies), 82
(bis), 85, 88, 89, 91, 94 (bis), 96 (bis),
103, 120 (quinquies), 130, 136, 155,
190, 212, 278 (bis), 294, 295, 318 (bis),
334> 344* 345-
Sext (Liber sextus dtcretahum), 94, 139,
2S9> 322, 344;
Corpus Juris Civilis,
Code of Justinian (lustiniani codex), 10,
12 (ter), 13 (nonies), I4(octies), 15, 16,
17 (bis), 18 (ter), 20 (sedecies), 21
(septies), 22 (decies), 23 (undecies), 24
(quater), 25 (septendecies), 26 (quattu-
ordecies), 27 (quater), 28, 30 (quater),
31, 32 (quater), 33 (ter), 34 (ter), 35
(quinquies), 37 (decies), 38 (decies),
38-9, 39 (quinquies), 40 (ter), 41 (ter),
42, 43, 45 (quater), 46 (ter), 48, 50
(bis), 51 (bis), 52 (ter), 53 (quattuor-
decies), 54 (duodecies), 55 (quinquies),
73, 80 (bis), 82, 99, 104, 107 (bis), 108
(bis), 109 (sexies), 115, 117, n8 (bis),
123, 128, 139, 141, 150 (bis), 152, 153,
155, 161 (quater), 162 (ter), 163 (quin-
quies), 164 (bis), 165 (bis), 166 (bis),
167, 170, 177 (quater), 178, 179 (bis),
180 (bis), 181 (quinquies), 182 (dtio-
decies), 183 (duodecies), 184 (undecies),
185 (quinquies), 186, 187 (ter), 188
(decies), 190 (ter), 198 (terdecies), 199
(quinquies), 201 (octies), 203 (ter),
205 (quinquies), 206 (bis), 207, 208
(ter), 209 (quinquies), 210 (sexies),
211 (octies), 212 (septies), 213 (nonies),
214 (undecies), 215 (quindecies), 223,
241 (ter), 242, 245, (bis), 246 (ter), 251
(sexies), 257, 266 (bis), 267 (bis), 268,
269, 270 (bis), 271 (bis), 272 (bis), 281,
282 (quater), 296, 299, 308, 317, 323,
325 (ter), 326, 328, 331 (ter), 333, 336,
337-
Digest of Justinian (lustiniani digestum),
4 (ter), 7, 9 (ter), 10, 12, 13, 16, 17 (ter),
18 (quinquies), 21, 23, 28, 32 (bis), 33
(ter), 40 (quinquies), 42, 43 (quinquies),
44 (quater), 45 (quater), 46 (bis) 47
Index of Authors Cited
353
(sexies), 48 (octies), 49 (septies), 50
(ter), 51 (quater),53 (bis), 54 (septies),
55, 61, 62 (bis), 64 (bis), 65, 71, 72
(quater), 73 (bis), 79 (quater), 79-80,
80 (ter), 8 1 (bis), 84, 85 (octies), 86, 87,
97, 103, 104 (duodecies), 105 (octies),
106 (quater), 107 (quater), 108 (ter),
109 (quater), no (nonies), III (quin-
quies), 112 (quater), 116 (ter), 117
(quater), 118 (quinquies), 120, 121,
122 (bis), 123 (sexies), 124 (ter), 126
(ter), 128 (sexies), 129 (ter), 130
(terdecies), 135 (bis), 136, 137 (bis),
139 (bis), 140, 141 (nonies), 142
(septies), 144, 147 (bis), 148 (octies),
149 (ter), 150 (octies), 151 (sexies), 152
(quinquies), 153, 154, 154-5, 155, 160
(quater), 161 (terdecies), 162 (quin-
quies), 163 (decies), 164 (quater), 165
(sexies), 166 (ter), 167 (bis), 168 (octies),
169 (quattuordecies), 170 (octies), 171
(decies), 172 (undecies), 173 (ter), 177
(octies), 180 (quater), 181 (quater), 182
(bis), 183 (bis), 184 (bis), 185 (septies),
1 86 (ter), 187, 190, 203 (quinquies),
204 (bis), 205 (bis), 206 (bis), 207,
208 (quattuordecies), 209 (ter), 210
(nonies), 211 (quater), 212 (ter), 215
(bis), 221 (nonies), 222 (octies), 223
(quinquies), 224 (sexies), 225 (quin-
quies), 226 (quinquies), 227 (bis), 228,
231, 233 (bis), 234 (septies), 235 (bis),
236 (nonies), 237 (bis), 238 (quinquies),
239 (sexies), 240, 241 (undecies), 242
(terdecies), 246 (quater), 251, 252, 253,
254, 256, 257 (quinquies), 258 (ter),
261, 262 (nonies), 263 (bis), 267
(quater), 268 (quinquies), 269 (sexies),
270 (quinquies), 272, 277, 281 (bis),
282 (quinquies), 283 (quater), 285
(quinquies), 286 (ter), 291 (ter), 294
(bis), 295 (ter), 296, 299, 307, 308, 310
(bis), 312 (quinquies), 313 (bis), 314,
315 (ter), 317, 318, 320 (bis), 322, 325,
326 (quinquies), 329, 330 (decies), 331
(sexies), 332 (ter), 333 (ter), 336 (bis),
337> 34 2 (octies), 343 (bis), 345.
Institutes of Justinian (lustiniani Insti-
tutiones), 85, 86, in, 116, 122 (bis),
164, 166 (bis), 172, 203, 269, 333,
Novels (lustiniani novfUae), 31, 33, 41
(bis), 42, 44 (ter), 46, 49 (ter), 50 (bis),
201 (bis), 267.
1569-64 Z 2
Corsetti, Antonio (d. 1503), Sicilian canon-
ist, taught at Bologna and Pavia.
De potestate ac excellentia regia, 94.
De privilegiis pads, 1 38.
Cravetta, Aimo [Aymo, Aimone] (1504
1569), Italian jurist.
De antiquitatibus temporum, 263.
Curtius.
Tractatus Feudorum, 66, 72, 292.
Decio, Filippo (1453-1535), jurist, taught
at Pisa, Pavia, Sienna, Rome, Valence.
Consilia, 90 (quinquies), 152 (quinquies),
153, 185 (quater), 190 (bis), 233, 257
(bis), 260 (bis), 261, 284 (bis), 296, 304,
320 (quater), 321 (bis), 322 (bis), 323
(bis), 345.
On Code, 185.
On Digest, 271.
Decretals (Decretales Gregorii Papae IX).
See Corpus Juris Canoniei.
Decretum Gratiani. See Corpus Juris
Canoniei.
Demosthenes (AripoadevTis, c. 382-c. 322
B.C.), greatest of Athenian orators, 73,
307.
Didacus, a Spaniard (Diego del Castillo^ fl.
1527?)
Veterum collatio numismatum, 175.
Digest of Justinian (lustiniani digestum).
See Corpus Juris Civilis.
Doctors, 135, 187, 209, 221, 261, 281, 314,
315, 321, 343, 344.
On Code, 20, 47, 167, 179, 182, 188, 214,
283, 333-
On Decretals, 136, 162.
On Digest, 45, no (bis), 117, 127, 141,
142, 149, 150 (ter), 170 (bis), 188, 223,
260, 262, 311, 312 (bis), 333, 334,
343-
On Feuds, 72.
On Bext, 127, 262.
Dominicus de Sancto Geminiano (Domen-
icho da San Gimignano, fi. c. 1407),
Florentine canonist.
On Decretals (Commentarium in libros
decretalium, Venice, 1520), 259.
On Sext (Commentarium in sextum,
Venice, 1558), 259, 290.
Donatus, Aelius (b. c. 333), Latin gram-
marian.
Life of Firgil. See under Suetonius, Cains
Tranquillus.
354
Index of Authors Cited
Durandus, Gulielmus (c. 1237-1296), Frencli
canonist, 307.
Speculum juris i 46, 68, 69 (quinquies), 70,
71, 198.
Dynus de Rossonibus Mugellanus (d. 1303),
jurist, taught at Bologna and Pistoia,
308.
On Digest, 153, 328.
On Sext, 295.
Ennius, Quintus (c. 239-169 B.C.), Roman
epic poet.
Annals, 61.
Ephesians. See Bible, New Testament.
Esther. See Bible, Old Testament.
Felinus. See Sandeo, Felino Maria.
Festus. See Pompeius Festus, Sextus.
Feuds (Feudonim libri}, io 5 42 (bis), 64, 67,
68, 71 (ter), 74 (ter), 90, 227 (bis), 239
(ter), 301, 311.
Firmicus Maternus, Julius or Villius (4th
century), Latin ecclesiastic (Bishop of
Milan?), 24(0-
Florianus de Sancto Petro (fl. 1497-1505),
Bolognese jurist.
On Digest, 261, 330, 331.
Franchis, Philippus Francus de (Perusinus;
d. 1471), canonist, taught at Perugia,
Pavia, and Ferrara.
On Sext (Super sexto), 259, 261, 290.
Franciscus Cremensis.
Singularia [casuum judicior-um, Paris,
I5o8(?)], 117,236.
Frederick, Constitutions of. See Constitu-
tions of Fredericl:.
Frontinus. See Julius Frontinus, Sextus.
Fulgosius, Raphael (1367-1427), Italian
jurist.
Consilia,6, 187, 281.
On Code, 162.
On Digest, 135, 148, 209 (bis).
Galatians. See Bible, New Testament.
Gallicanus, Vulcacius (3rd century, Chris-
tian era ?), Roman historian.
Life of Avidius Cassius, 245.
Gellius, Aulus (2nd century, Christian era),
Latin grammarian.
Attic Nights (Noctium Atticarum libri
*#), 46, 51,73.
Geminianus. See Dominicus de Sancto
Geminiano; Nellus a Sancto Ge-
miniano.
Genesis. See Bible, Old Testament.
Geoffrey of Trani (d. 1242), Cardinal,
chaplain of Pope Gregory IX, taught
at Bologna, 279.
Glossators and Glosses.
QTL Autbentica, 10, 12, 178, 253 (bis).
On Clementines, 126, 208.
On Code, 10, 24, 25 (bis), 38, 52 (bis), 53
(ter), 54 (quater), 153, 162, 163, 165
(bis), 167, 172, 178, 181, 182, 185, 206,
214 (bis), 270 (ter), 271.
On Decretals, 136, 162, 292.
On Decretum, 5, 8 (bis), 60, 96 (bis), 120
(bis), 130, 265, 343.
On Digest, 9, 10, 23 (bis), 40, 53 (bis), 55,
68, Si, 109, no, in (bis), 117, 126,
127, 135, 141 (bis), 142, 148, 149, 152
(bis), 162, 163, 165, 168 (bis), 171, 172
(bis), 173, 180, 182, 188, 190, 221, 223,
257, 270 (bis), 271, 325, 333, 342.
On Feuds, 16, 63, 68, 71, 72, 315 (bis).
On Institutes, 281, 282.
On Sext, 127, 278.
On the Additions of Giovanni d' Andrea,
322.
Gozzadinus [Gozadinus], Bartholomaeus
(d. 1463) or Laurentius ?
Consilia, 255.
Gratian (Gratianus, fl. c. 1125-1150) Italian
cleric (Benedictine?) compiler of the
Decretum, q.v., founder of the science
of Canon Law, 295.
Gutierrez Joannes (Joannes de Placentina ?).
On Digest, 181.
Guy de la Pape. See Pape, Guy de la.
Haloander, Gregor (d. 1532), Saxon jurist.
Annorum . . . ad quartum D. lustiniani
consulatum digestio, 196.
Digestorum seu pandectarum libri L.,
26(?), 307.
On Novels, 49.
Homer ("Ofwypos, loth century B.C.?)
Greek epic poet.
Iliad, 6l.
Homobonus (fl. c. 1220), Doctor of Cre-
mona, teacher of Hostiensis and,
according to Savigny, possibly the
editor of Accursius, 285.
Horace (Quintus Horatius Flaccus, 65-8
B.C.), Roman poet.
Arspoetica, 327,
Letters, 221.
Index of Authors Cited
355
Odes, 62, 186, 234.
Satires, 14, 61, 202.
Hostiensis (Blessed Henry of Segusio, d.
1271), Bishop of Ostia and Velletri,
canonist, in, 136.
Summa aurea, 5, 8, 9, 59, 156, 296.
Igneus, Joannes (Jean Feu).
Repetitions* on Code, 302.
Imolensis. See Joannes of Imola.
Innocent.
On Sext 9 290.
Innocent III (Joannes Lotharius dei Segni,
1153-1216), elected Pope in 1 198; 142?
Quoted in Decretals, 115, 141.
Innocent IV (Sinibaldo de' Fieschi, d.
1254), elected Pope in 1243; canonist.
On Decretals (Apparatus super libros
decretalium), 6, 8, 9 (bis), 10, 59 (bis),
64, 90, 141, 290, 317, 318, 344.
Institutes of Justinian (lustiniani institu-
tiones). See Corf us luris Cimlis.
Isaiah. See Bible, Old Testament.
Isernia, Andreas d' (Andreas di Rampinis ab
Isernia, fl. c. 1533), Sicilian jurist.
On Feuds (In usus feudorum), 8 (bis), 65,
70 (ter), 121, 281, 320 (ter).
Placita principum sen constitutiones regni
Neapolitan^ 68.
Jacobinus de Sancto Giorgio (l 5th century),
Italian jurist.
De adbaerentibus, 294.
De bomagiis, 75 (bis).
Gloss, 70, 72, 73 (bis), 74 (bis), 75.
Investitura, and gloss, 64, 69 (bis), 70,
72, 290.
Jacobus de Ardizone (Jacopo Ardizzone,
fl. I4th century), Veronese jurist.
On Feuds (Summa. feudorum), 67.
Jacobus de Belvisio. See Belvisio, Jacobus de.
Jacobus of Arezzo, 156.
On Code, 326.
Jacobus of Ravenna (Jacobus de porta
Ravennate, d. 1178), Bolognese doctor
of law, 253.
James, Saint. See Bible, New Testament.
Jason (Giasone del Maino, I43S- I S I 9)>
Italian jurist, 154, 163, 313.
Consilia, 138.
On Code, 45, 46, 138, 152 (bis), 161, 162
(bis), 188, 190-1, 313.
On Digest, 50, 97> I0 7> I2 7> ^3 00> *3&>
153, 154, 155, 209, 261, 262 (bis), 263,
269,311 (bis), 313, 314-15, 322, 333, 334.
On Institutes, 267, 269.
Jerome (Sophronius Eusebius Hieronymus,
c. 340-420), Saint, Father of the
Church.
Letters, 21.
Joannes a Ripa (Joannes Franciscus Riva
Ticinus, d. 1534 or 1535), jurist, taught
at Avignon and Pavia.
Depeste, 153.
On Digest, 107, 118, 344 (bis).
ResponsioneSy 154.
Joannes of Imola (Imolensis, d. 1436),
canonist, taught at Pavia, Ferrara, and
Bologna, 118, 164, 167, 260, 310.
Consilia, 99, 153, 233, 254, 255.
On Digest, 139, 268, 283, 305, 310, 315,
318, 333, 334, 337, S4 2 * 344-
Joannes Pyrrhus. See Pyrrhus, Joannes.
Job. See Bible, Old Testament-
John, Saint. See Bible, New Testament.
Joshua. See Bible, Old Testament.
Julianus, Salvius (b. c. A.D. 100), great-
grandfather of Emperor Didius ; Roman
jurist quoted in Digest, 331, 332.
Julius Caesar, Caius (100-44 B.C.), Roman
general, writer, dictator.
Civil War, 30 (septies), 45, 195, 223, 237.
Gallic War, 18, 29, 235, 341, 342.
Julius Frontinus, Sextus (c A.D. 40-160),
Roman military writer.
Stratagems, 19.
Jurists, Jurisconsults.
On Digest, 193 (ter),
On Feuds, 63.
Justinian I (483-565), Emperor of the East
(527), under whose authority Roman
law was codified. See Corpus luris
Cimlis, also Justinian in General Index,
33, z88.
Juvenal (Decimus Junius Juvenalis, c. A.D.
40-c. A.D. 125), Roman satirical poet.
Satires, 55, 212, 315.
Kings. See Bible, Old Testament.
Lambin, Denis (Dionysius Lambinus, c.
1516-1572), French classical scholar.
On Horace's Epistles, 174.
On Horace's Satires, 174.
Lampridius, Aelius (fl. c. A.D. 310), Latin
historical writer, one of the Smptores
historian Angus toe*
Alexander Severus, 177-8.
3S 6
Index of Authors Cited
Law of the Lombards (Lex Langobardorum),
69, 3!5> 335-
Legists.
On Digest, 193 (ter).
Legnano, Giovanni da (d. 1383), Bolognese
canonist, 335.
De face, 279.
Leonardus de Portis. See Porto, Leonardo.
Livy (Titus Livius, 59 B.C.-A.D. 17), Roman
historian.
Histories, 7, 12, 15 (quater), 16 (bis), 28,
29, 61, 78 (quater), 79 (bis), 80, Si,
82 (bis), 86 (ter), 87 (ter), 88, 97, 107
(ter), 108 (bis), no, 139, 193 (quater),
194 (series), 196 (quater), 197, 224
(bis), 225 (ter), 226, 228 (ter), 229
(quater), 230, 231 (ter), 232 (ter), 233,
234, 235 (ter), 236 (bis), 237 (ter), 238
(quater), 240, 243 (quinquies), 271
(quater), 279, 279-80, 303, 341.
Lucan (Marcus Annaeus Luc anus, A.B.
39-65), Latin poet.
Pbarsalia (De betto civili libri decem}, 3.
LucasdePenna(i4thcentury),Italianjurist.
On Code, % 12, 13 (bis), 19, 20 (ter), 21,
22, 23, 24, 37, 52, 62, 65, 154, 155 (bis),
200 (bis), 325 (ter), 326 (ter).
Luke, Saint. See Bible, New Testament.
Lupus, Joannes (Juan Lopez, of Segovia; d.
1496), theologian.
De bello et bellatoribits, 296 (bis).
De confederations principum, 94.
Maccabees. See Bible, Old Testament.
Macer, Aemilius (3rd century Christian era),
Roman jurist quoted in Digest, 18.
Mantuanus, Marcus. See Benavides, Marco.
Marcianus, Aelhis (3rd century Christian
era), Roman jurist quoted in Digest, 18.
Mark, Saint. See Bible, New Testament.
Martinus Laudensis (Martinus de Caraziis
[Garatus] *da Lodi', fl. c. 1440), Italian
jurist.
De bello, 59, 70, 75, 94,^108, 181.
De cardinalibus, 161 (bis).
De castettanis et castris, 328 (ter).
De confederation* et pace, 138.
De c onsiliar iis principum, 1 88.
De miUtc? 91, 181, 246.
De offidalibus dominorum, 187.
De prindpibus, 224.
Maternus. See Firmicus Maternus, Julius or
ViUius.
Matthew, Saint. See Bible, New Testament.
Modestinus Herennius, (3rd century Chris-
tian era), Roman jurist quoted in
Digest, 79, 236.
Montaigne, Joannes.
De auctoritate . . . magni concilii, &c., 51.
Natta, Marco Antonio di Asti (d. 1568),
Italian jurist.
Consilia sen response, 224.
Nellus de Sancto Geminiano (Nello di San
Gimignano, fl. 1420), Florentine jurist.
Tractates de bannitis, et materia banni-
torum (Venice, 1498), 255.
Nevizan, Giovanni (d. 1540), Italian jurist,
b, at Asti, 302.
Nicholas of Naples (Niccolo di Napoli, fl.
c. 1475).
On Institutes, 269.
Novels of Justinian (lustinianinovellae'). See
Corpus luris Civilis.
Numbers. See Bible, Old Testament.
Nuremberg Pandects, 165.
Obertus de Orto (Oberto dal ? Orto, fl. c.
1135), feudal jurist, 64, 65.
Odofredus (d. 1265), Bolognese jurist.
On Code, 141.
Oldendorp, Johann (c. 1480-1567), German
jurist.
De iure militari, 178.
Loci communes juris civilis, 44.
Oldradus de Ponte (d. 1335), Italian civilist,
260, 312.
Consilia, 6, 8, 48, 66, 69 (bis), 90, 94, 325,
326 (bis).
On Code, 326.
Orto, Obertus de. See Obertus de Orto.
Ovid (Publius Ovidius Naso, 43 B.C.-A.D.
1 8), Roman lyric poet.
Art of Love, 192.
Metamorphoses, 277.
Remedy for Love, 143.
Panormitanus (Niccolo Tedeschi, 1386-
1445) Benedictine canonist; Arch-
bishop of Palermo; sometimes cited as
Abbas or Abbas Siculus, 345.
Consilia, 185.
On Decretals, 5, 6 (bis), 8, 9, 64 (ter), 75,
8 1, 82, 84, 90 (bis), 98, 136, 139, H 1 *
156, 187, 259, 260, 290 (bis), 296, 316
(bis), 343, 344-
Paolo di Castro. See Castro, Paolo di.
Index of Authors Cited
357
Pape, Guy de la (c. 1400-0. 1475), French
jurist.
Decisiones, 75, 80, 119, 144.
Paris dePuteo, 335.
De re militari (sometimes cited by Belli
as De duello, sive, &c.), 90, 126, 127.
De sindicatu omnium officialium, 246.
Parisio (Petrus Paulus Parisio Cardinal
Consentinus, 1473-1545), jurist, taught
at Bologna and Pavia.
Consilia, 154, 305.
Paul, Saint, 93. See also under Bible, New
Testament, Romans, i Corinthians,
Galatians, Epbesians, I Tbessalonians.
Paulus Atavantius (d. c. 1499), Florentine
Servite.
On Decretals, 344.
Penna. See Lucas de Penna.
Plato (ZZAcLTCOv, c. 429-347 B.C.), Athenian
philosopher.
Crito, 228.
Pbaeda, 277.
Plautus, Titus Maccius (c* 254-0. 184 B,C,),
Roman comic dramatist.
The Menaechmi, 55.
Plutarch (IlXovrapxos, c. A.D. 50-0. 120),
Greek biographer and philosopher.
Apopbtbegmata Laconica, 140.
Parallel Lives (Crassus), n, (Caius
Gracchus), 15.
Pompeius Festus, Sextus (3rd or 4th century
Christian era), Latin grammarian.
De verborum significatu, 3, 4, 83.
Pomponius, Sextus (2nd century Christian
era), Roman jurist quoted in Digest,
45 (bis), 271.
Ponte, Oldradus de. See Oldradus de Ponte.
Porto, Leonardo (Leonardus de Portis, c,
1460-1545), jurist and scholar of
Vicenza.
De sestertio, pecuniis, ponderibus et
mensuris antiquis, 174, 196, 197.
Postglossator. See Comment or Commen-
tator.
Proverbs. See Bible, Old Testament.
Psalms. See Bible, Old Testament.
Pseudo-Aurelius Victor.
Epitome de Caesaribus, 55.
Pyrrhus, Joannes (Anglebermeus; Jean
Pyrrhe d'Angleberme, c. 1470-1521),
jurist, taught at Orleans, 50.
Commentary on three books of the Code,
29, 30 (bis).
Tractatus de magistratibus Romanis, 14
(bis), 26, 29 (bis), 52, 53.
Quintilian (Marcus Fabius Quintilianus, c,
A.D. 45-118), Roman rhetorician, 200.
Raimondi (fl. I3th century), Italian jurist
and glossator.
On Digest, 154, 292.
Raphael of Como (Comensis, d. at Padua,
1427), Italian jurist.
Consilia, 6 (bis).
Report to the Emperor Theodosius (Brevi-
arium ad Tbeodosium Imperatorem), 13,
28, 34, 35, 37, 4i, 4^, 43, 49, 5<>, 210.
Revelation. See Bible, New Testament.
Rip a. See Joannes a Ripa.
Rogerius (fl. last half of the twelfth century),
Italian jurist, doctor, and glossator.
De diver sis praescriptionibus, 45.
Romans. See Bible, New Testament.
Romanus (Ludovicus Pontanus Romanus,
1409-1439), Italian jurist.
Consilia, 76 (bis), 189, 279, 284, 302 (ter),
305 (bis).
Decisiones , 272.
On Digest, 164.
Singularia, 181, 187.
Rosate, Alberico de. See Alberico de Rosate.
Sabinus, Masurius (ist century Christian
era), Roman jurist, cited in Digest, 130,
332-
Saliceto, Bartholomaeus de (d. 1412),
Italian jurist.
On Autbentica, 284.
On Code, 8, 95, 96, 98, 115 (ter) 7 118
(bis), 122 (bis), 139, 164, 184, 190 (ter),
221, 253 (bis), 314,
Sancto-Giorgio. See Jacobinus de Sancto-
Giorgio.
Samuel. See Bible, Old Testament.
Sandeo, Felino Maria (Felinus, c. 1444-
1503), canonist of Ferrara, 91.
On Decretals, 41, 48, 63, 99, 118, 127,
137, 152 (ter), 162, 169, 187, 209 (bis),
221, 233, 236, (bis), 253, 257, 259, 260,
263, 271 (bis), 272, 284 (bis), 291 (ter),
307, 320 (bis), 322, 325, 333-.
Saturninus, Claudius- See Venuleius Satur-
ninus, Q. Claudius.
Sext (Liber sextus decretalium). See Corpus
Juris Canonid.
358
Index of Authors Cited
Socinus, Bartholomaeus (1436-1507),
Siennese jurist, taught at Pisa, Padua,
Pavia, Sienna, Ferrara, Bologna.
Consilia, 138, 190, 233, 292, 302, 309,
310, 322.
Socinus, Marianus junior (1482-1556),
Siennese jurist.
On Digest, 98, 99 (bis), 154.
Socini. See Socinus, Bartholomaeus, or
Socinus, Marianus.
Solon (E6Xa>v, 638-558 B.C.), Athenian law-
giver, cited by ancient authors, 160.
Spartianus, Aelius (fl. c. A.D. 300), Roman
historian.
Life of Hadrian, 267.
Life of Pescennius Niger (ascribed to
Spartianus), 245 (bis).
Statuta Mantuae (quoted from Du Cange's
Glossarium mediae et infimae Latini-
tatis\ 267.
Suetonius, Caius Tranquillus (b. c. A.D. 70),
Roman historian.
Augustus, 202, 238.
Life of Virgil (attributed to Suetonius),
202.
Summa Astesiana (early 1 4th century), by a
Franciscan of Asti, 59.
Tabia. See Cagnazzo, Joannes.
Tacitus. See Cornelius Tacitus.
Terence (Publius Terentius Afer, b. at
Carthage, c. 195 B.C.; d. 159 or 158
B.C.), Roman comic dramatist.
Eunuch, 195, 223, 235, 335.
Theodosian Code. See Codex Theodosianus.
Thessalonians. See Bible, New Testament.
Thomas Aquinas, Saint (c. 1225-1274),
Scholastic theologian, the 'Angelic
Doctor'.
Summa, 88, 278.
Tiraqueau, Andre (Tiraquellus, c. 1480-
1558), French jurist.
De legibus connubialibus, 178.
De nobilitate et iure primogeniturae, 185,
190, 191, 208, 234 (bis).
De utroque retractu, 269.
Tullius Cicero, Marcus (106-43 B.C.),
Roman lawyer, philosopher, and states-
man, 42.
AdM. Brutum, 1 60, 296.
Delmperio Cn. Pompei, 137.
Pro M Hone, 8 1.
For the Manilian Law, 153.
Letters to Friends, 23, 210, 330.
On Duties, 3-4, 4 (bis), 61, 78, 79, 88,
119-20, 126, 140, 147, 278, 279.
Topics, 79.
Tus cnlan Disputations, 187, 201.
! Ulpian (Domitius Ulpianus, c. A.D. 170-
i 228), Roman jurist, quoted in Digest,
25> 5, S3, 226, 333.
Valerius Maximus (ist century Christian
era), Roman historical writer.
Factorum et dictorum memorabilium libri
IX, 81.
Vegetius, Flavius Renatus (4th~5th century
| Christian era), Latin writer.
j Rei militaris instituta, 4 (bis), 12 (bis),
j 22, 24 (bis), 26, 28 (bis), 40, 43, 44, 51,
j 171, 180, 197, 201, 228, 244, 279.
Venuleius Saturninus, Q. Claudius (2nd
century Christian era), Roman jurist
quoted in Digest, 307.
Vincent of Spain (Vincentius Hispanus,
Bishop of Saragossa in 1239? d. 1244),
canonist, 138, 139.
Virgil (Publius Virgilius Maro, 70-19 B.C.),
Roman epic poet.
Aeneid, 29, 51, 62, 77, 78, 86, 89 (bis),
96-7, 136,189,212,278.
Vopiscus, Flavius (fl. c. A.D. 300-320), Latin
historian, 245 (bis).
Life of Aurelian, 202.
Life of Claudius, 202.
Xenophon (Eevotfr&v, c. 445~c. 355 B.C.),
Athenian historian and general.
Cyropaedia, 234 (bis).
Hellenics, 227, 233 (bis).
Zabarella, Francesco (1360-1417), Cardinal
Archbishop of Florence, canonist, cited
as The Cardinal.
Consilia, 322.
On Decretals, 60.
On the Constitutions of Clement (Lee-
tura super Clementinis) y 40 (quater),
318.
Zasius, Ulrich (1461-1536), German jurist.
On Digest, 44, 45, 51 (bis).
GENERAL INDEX
Abandonment :
of a citadel, under Lex lulia maiestatis, 2 40,
of a stronghold upon news of the enemy's
approach, 328.
Abbots. See Ecclesiastics; Abbots.
Abraham (Abram, fl. c. 2000 B.C.), Hebrew
patriarch, takes Mamre for ally, 93.
Absence from post, crime, 242.
Abusive language to parent, crime, 242.
Accessory:
liability of, to penalty of statute, how
often to be incurred, 333.
same person cannot be both principal and,
33 2 -
Accident does not excuse loss of that which
should have been defended, 325.
Accomplice, liability of, to the penalties for
breaking the peace, 333.
Accountants:
in Roman military service, 26,
private, 37.
under 'chief of finance', 53.
Accounting, ability in, required of some
classes of soldiers, 22.
Accounts, chief of, 53.
Accretion, right of, in soldiers' wills, 164,
167, 168, 170.
Achaeans, 7.
Acqui (a town in province of Alessandria,
Italy), 263.
Acquisition,military. StePecuhwn castrense.
Acquittal:
difference between an, by judge, and
sovereign's indulgence, 281-2.
effect of an, from charge by fiscus, 282.
from charge of adultery, 282.
Ac ta. See Records and Accounts.
Action:
begun in one jurisdiction to enforce
injunction granted in another, 265*
by stipulation, 331.
failure to take, within specified period a
sign of condonement, 333.
for pillaged inheritance, 330, 331.
in court precludes all other redress, 333.
infactum ad interesse, 123.
Actors:
soldiers may not perform as, 246.
spoils given to, instead of to soldiers, 97.
Actuarii,, 22,
Adherents. See also Allies; Alliance:
adherence for purposes of war establishes
no jurisdiction over, 291-2.
distinction between two types of, 291.
person making peace should bind himself
for his, 291.
reservation of the rights of lords of, 292.
should be specifically mentioned in peace
treaty, 290.
whether included in peace made by chief
sponsors of war, 290-2.
Adjutant, identified with cornicularius, 24.
Adoption:
by governor of his own son, 47,
of son after having disinherited and
emancipated him, 336-7.
Adultery:
an injury to woman's husband, 312.
effect of acquittal from charge of, 282.
inflicts injury, 311.
whether peace is violated by, 305, 307-8.
Advancement in the Roman military
service, 201.
Advent, war forbidden during the canonical
season of, 82.
Advocate of the Fiscus. See Fiscus, advocate
of the.
Advocates:
discuss the estate of a Christian captive,
9S- 6 -
members of the Roman military service,
25-
Aelian (AQlunvs Ta/cnws, Aelianus Tacti-
cus, fl, c. 130), Greek tactician,
writes a treatise on warfare for Hadrian,
IV.
Aemilius Mamercus, M. 'Dictator' (fl. c.
5B.c.):5i(07- rA
Aeneas, legendary hero, son of Anchises of
Troy and Venus, combat with Turnus,
8 9-
Aequians (Aequi, ancient tribe inhabiting
west central Italy), 7, 78, 107, 194,
232.
Aequicoli. Same as Aequians, q.v.
Aetolians (a people formerly inhabiting
part of the modern Greek nome of
Acarnania and Aetolia), 7.
3 6
General Index
Africa, 10, 71, 243.
count of treasury business in, 37.
Africanus. See Scipio Africanus.
Age:
for legal action, 15.
for military enlistment, 15-16.
governing factor in matters of precedence,
39<
Agent:
whether custodian of a castle is mere,
.324-5-
winnings of, go to principal, 128.
dgentes in rebus, 35.
advancement to rank of, 24.
department of the, 13.
duties of, in Roman military service, 22.
prerogative of chiefs of, 22-3.
Aggression:
a criterion of right to build border forti-
fications, 300-1.
Aggressors:
not permitted to fortify church, 156.
overlord bound to defend his vassal
against, 8.
provincials may not be, 120.
they who give provocation to fight are,
307.
Agrarian Laws. See Law, Roman.
Agreements. See also Contracts, Treaties,
&c.:
for dishonourable purposes invalid, 147.
made with enemy must be carried out,
88.
of guilty person to put himself at discre-
tion of injured person, 317-18.
to share booty. See under Partnerships,
with brother for renunciation of fidei-
commissum from the father, 213.
Agrippa, denarius of, 175.
Ahasuerus. See Artaxerxes I, Longimanus.
Ahaz (Achaz, fl. c. 741-725 B.C.), King of
Judah:
hires King of Assyria to fight Syria and
Israel, 92.
not helped by his allies, 93.
Aids, civic and military, 24.
of provincial officials, food administrator,
&c v 25.
Alani (*^4Aavot, ancient nomadic people
inhabiting the shores of the Sea of
Azov), invasions of the, 60.
Alba (ancient Italian town; more especi-
ally a town, in Piedmont) :
Belli's 'original home', 327.
envoys sent to, by Tullus, 78.
taken by French, 327.
Alba, Duke of, v.
Alcantara, Military Order of, forts of
Templars delivered to, 327.
Alessandria (city in the Italian province of
Alessandria), 327.
Alexander II, 'Zabinas', King of Syria from
128 B.C. to 122 B.C. [?], 15.
Alexander III of Macedon, the Great
(356-323 B.C.):
combat with Porus, 89.
subdues Darius, 279.
Alexander Severus (Marcus Aurelius Alex-
ander Severus, b, 205, chosen Roman
Emperor, 222, d. 235), 25, 55, 213.
'Golden Rule' from lips of, 177-8.
Algiers, Charles V in, 171.
Alienation of property of minor who is
soldier, under common law, 213.
Allegiance :
earlier takes precedence over later, 231,
whether guaranteed treaty of peace
covers a town which subsequently
gives, 304.
AUia, Battle on the (Romans defeated by
the Gauls, July 16, 390 B.C.; according
to Mommsen, 388 B.C.), 82.
Alliance. See also Adherents ; Allies :
difficulty arising from a treaty of, 149.
does not lapse solely on account of time,
does not normally entail jurisdiction or
subjection, 291-2.
Allies. See also Adherents; Alliance:
defined, 86-7.
hostages given between, 341.
of Romans supply the army with money,
grain, clothing, 197.
punished less severely than Romans, 224.
war against enemy's, 83-4.
whether a king may defend a surrendered
city against one of his, 304.
AHobroges (tribe of Gauls who dwelt in the
modern Dauphine and Savoy), 223.
Altinius, Dacius (fl. c. 213 B.C.), magistrate
of Arpi, fickleness of, 230.
Amalekites ('^/xaAT/fdrai, a tribe of Edomite
Arabs, frequently mentioned in the
Bible), attacked by David, 93.
Amaziah (fl. 849-820 B.C.), King of Judah,
admonished by the prophet, 93.
General Index
361
Ambassadors. See also Envoys:
immunity of, under international law, 81.
of Carthage fall into hands of Scipio, 139.
sale of arms to, of enemy, 241.
safe-conducts issued to, of enemy: case,
255-6.
Ambush, leading an army into, 241.
America. See West, the.
Ammonites ('^4/z/xavZrat, a tribe of Be-
douins, frequently mentioned in the
Bible):
Hanun, king of, 8.
war of David against, 92.
Amnesty:
under a peace-pact, case concerning,
294-5.
whether, to rebels includes indirect sub-
jects, 318-19.
who may not profit by, granted to rebels
or enemies, 280.
Amorites (Mfiopirai, one of the seven
Canaanitish tribes, frequently men-
tioned in the Bible), allies of Abraham,
93-
Amurath (Murad) II (c. 1405-1451), Otto-
man sultan, peace with, violated, 88.
Anathema :
invoked against use of certain engines of
war, 1 86.
use of threat of, in war time, 81.
Ancona, Commune of, 256.
Ancus Martius (4th king of Rome, from c.
641 to c. 616 B.C.), 78.
Animals:
belonging to provincials, seizure of, 186.
deserter to enemy may be thrown to wild
beasts, 223.
Anjou, Charles of. See Charles I, duke of
Anjou.
Ante javelin troops in Roman army, 29.
Anthony, Saint, quaestuaries of, 152.
Antiochus III (*Avrioxos, the Great, c.
238-187 B.C.), king of Syria, wars of
Romans with, 7, 61.
Antiochus IV (Epiphanes, the Illustrious,
fl. 175-164 B.C.), king of Syria,
Babylonia, Media, &c., Maccabees ally
themselves with the Romans against, 93.
Antiquarians, in Roman civil service, 21, 22.
Antoninus Pius (Titus Aurelius Fulvus
Boionius Arrius Antoninus, b. A.D. 86,
chosen Roman Emperor, 138, d. 161),
108.
1569.64 3 A
Antonius, Gaius (*Hybrida'; consul with
Cicero in 63 B.C.), 42.
Antonius, Marcus ('Triumvir' popularly,
Mark Antony c. 83-30 B.C.), Roman
general and politician, celebrates defeat
of Brutus and Cassius, 193.
Anxur (Volscian city [Tarracina], site of
the present city of Terracina (Lazio),
on the Tyrrhenian Sea), 196.
Apollo (classical divinity); tithes from the
spoil dedicated to, 97.
Apostolic See. See also Pope:
always includes its adherents in making
peace, 290.
peace between Perugians and, (A.D.
1371?), 281.
should be consulted before taxing clergy,
155-
Appeal:
for redress of wrongs, to one's Bishop, 10,
to a common overlord, 10, to the
enemy's overlord, 8.
from judgement concerning supplies for
army, 186.
privilege of a minor in military service
with regard to, 1 80.
to praetor against another praetor, 45.
Appearance and reality in donations, 215.
Appius. See Claudius, Appius.
Appointees (candidati) described, 51.
Appropriation, of a gain accruing to another
under certain circumstances, 301.
Apronius, Lucius (fl. c. A.D. 18), Roman
general, punishes a cohort which started
a retreat, 243-4.
Aquilian Law. See Lex jiquilia.
Aquilonia (unidentified city of Samnium),
193-
Aragon, consul of king of, at Ancona,
256.
Aragon, Pedro III of. See Peter III, king
of Aragon.
Araspes (Araspas, 'ApdcrnaS) fl. c. 420 B.C.),
Mede, acts as spy on Cyrus's behalf,
;
Arbitration, war may not be made against a
party willing to accept, 1 1.
Archers, 35.
Arezzo (Tuscan city, province of Arezzo),
99-
Ariovistus (fl. c. 60 B.C.), Germanic chief-
tain, invades Italy, 6o
Armenia, 244, 341.
362
General Index
Armour-bearer :
enjoys privileges of master and soldiers,
171.
put to death by Totila, 178.
Armourers, 184.
frimicerius of, 21, 25.
rank of, in Roman military service, 25.
Arms:
do not return by postliminy, 105.
giving or selling of, to enemy, 241.
loss or transfer of, a military crime, 236.
Army:
Appius Claudius punishes, for disgraceful
retreat, 243.
committed to proconsuls, 43.
praetor's, 44. t
unauthorized organization of, 241.
Arpi (ancient city known to Greeks as
Argyrippa 'ApyvpiTnra situated in
the Apulian plain close to modern
town of Foggia), 229.
joins the Carthaginians, 230.
Arsaces (*Apcrdfcr]$, a common name of the
Parthian rulers), 342.
See also Art ab anus III; Phraates; Phraates
IV; Meherdates.
Artabanus III ^Aprafiavos, Arsaces XIX,
d. c. A.D. 44), Median king, ruler of
Parthia, 342.
Artaxerxes I CApra^p^s, *Longimanus',
king of Persia from 465 B.C. to 425 B.C, ;
identified with Ahasuerus of the Book
of Esther), orders the chronicles to be
read to him, 22.
Arthur, duke of Brittany (l 1 87-1 203), ceded
by the king of France to the king of
England, 302.
Artisans, prefect of, 33.
As (unit of value in the Roman coinage),
value of, discussed, 173-5.
Asa (d, c. 929 B.c.) 3 king of Judah:
hires king of Syria to fight against Israel,
92.
reproved by Hanani, 93.
Asia, 61.
Asia Minor, Tamerlane's invasion of, 6o-l.
Assault:
upon another soldier with a sword, crime:
punishment, 241-2.
upon a superior officer, crime: punish-
ment, 238,
Assessment, 179,
Assessors, 26,
Assets, count of personal, 37.
Assistants, 50.
in Roman civil service, 21, 22.
Assyria :
Assyrians, 61.
king of, 234, hired by Ahaz to fight kings
of Syria and Israel, 92.
wars of kings of, against the Jews, 61.
Asti (town in Italy, prov. of Alessandria,
birthplace of author of present work),
77, 175, 255, 263, 264, 265.
action begun at Milan to enforce an
injunction granted at, 265.
Athenians, 7.
Atillius Regulus, Marcus (consul for second
time 256 B.C.), Reman general,
keeps oath to return to his captors, 126.
loses right of postliminy, 104.
Attaches, 184.
Attack, resistance to, justified, 65.
Attempt to kill an imperial official, crime,
241.
Attendants :
governor acting as judge of his own, 48.
military, have soldiers' privilege with
regard to wills, 170.
Augustus (Gaius Julius Caesar Octavianus,
b. 63 B.C., chosen Roman Emperor,
31 B.C., d. A.D. 14):
administration of justice in Egypt under,
53 :
appoints an administrator of Rome, 32-3.
changes in provincial administration
under, 28.
Paternus writes treatise on warfare for, iv.
story regarding birth of, 202.
Aurelian (Claudius Domitius Aurelianus,
b. 212, chosen Roman Emperor, 276, d.
275), honoured by Valerian with gift
of 'free bread', 202.
Aureus (a Roman gold coin), value of, 173-5.
Authority:
for making war, 63.
gradations in, 322.
Auxiliary troops furnished to consuls, 43.
Avalos, Alfonso d' (1502-1546), Marquis
del Vasto, captain general of Charles V
in Italy, captain general of Duchy of
Milan, v, 49:
makes a truce with the Comte d'Enghien,
135-
Avidius Cassius (d. A.D. 175), Roman general,
governor of Syria, usurper of the
General Index
3 6 3
Empire, maintains the discipline of the
army, 245.
Baasha (king of Israel from c. 950 B.C. to c.
926 B.C.), Asa hires the king of Syria to
fight against, 92.
Bad debts, collectors of (coac tores), 210.
Bailiff, court, identified with stator y 23,
Balventius, Titus (fl. c. 54 B.C.), Roman
hero, 29. 1
Bandits:
do not intend to commit other injury,
but only to plunder, 308.
have no rights, II.
not permitted to fortify a church, 156.
Banishment. See also Exile:
beyond jurisdiction of governors, 49.
granting of safe-conducts to banished
persons, 253, 254.
procurator may not decree, 54.
whether permissible to injure banished
person after peace has been made with
him, 305.
Bankrupts, degradation of, in Belli's day
and in ancient times, 266-7. $ ee ^ so
Surrender (in civil procedure).
Barbarians, may take advantage of kw of
nations, 10.
Barbarius, 45,
Barbarossa (Arooj [Horush] d. 1518, ruler of
Algeria; also Khair al Din, d. 1546;
ruler of Tunis: brothers, renegade
Greek corsairs), alliance of king of
Tunis with Charles V against, 92.
Barcelona, 256.
Bardulis (BapSuAAi?, fl. c. 400 B.C.), robber
chieftain, king of Illyria, noted for fair
division of spoils, 147.
Baron:
at the coronation of emperor, 73-4.
may be deposed by emperor, 41.
Bastard:
child born in captivity, 1 08.
of a soldier may not be named as heir by
his father, 208.
Bath-Sheba (fl. c. icoo B.C.), wife of Uriah
the Hittite, 189.
Battle order, Livy's description of Roman,
28, 29.
Beast:
when one becomes property of its captor,
123.
who becomes owner of wounded, 130.
Beating:
in Roman army, 238-9*
punishment for failure to appear at roll-
call, 238.
punishment for incestuous marriage, 212.
punishment for mutiny, 235.
to death, punishment for desertion, 224.
Belisarius (BsXtadpios, 505-565), Roman
general, eastern empire, 17.
Belli, Pierino (1502-1575), author of the
work here translated:
appointed judge, v.
case involving safe-conduct, 256-8.
case of Joannes Baptista Furnarius, 327.
consulted about a case in Brussels, 127.
determines to write treatise, v.
no tactician, iv.
not expert in selection or training of
soldiers, iv.
pays for a borrowed horse, 294.
pensioned by Philip II, 202.
plea of, for Germanicus Savorgnanus,
264.
praises restoration of property under
treaties of Charles V and Philip II,
319.
scope and purpose of treatise, v, vL
served under Charles V, &c., v.
statement regarding date this treatise was
written, 280.
urges punishment for surrender of citadel
of Ivrea, 328.
Belt (cingulus) :
effect of command to take, upon the
making of wills, 171.
interpretation of, 12.
loss of, by referendaries, 55,
loss of, a punishment for incestuous
marriage, 212.
mark of rank, 38.
Benefices, ecclesiastical, not transferable,
206.
Berengarius, 256.
Bernabo Visconti (1319-1385), ruler of
Milan (with Galeazzo Viscoati), 189.
Bernard, Saint, quaestuaries of, 152.
Betrayal:
of a state or province to enemy: crime,
241.
of one's country: a heinous crime, 295.
of watchword: crime, 241.
liability of bondsman if custodian of a
stronghold betrays it, 328.
3 6 4
General Index
Binding over to keep the peace:
injunction enforceable in another juris-
diction, 265.
infraction of injunction, involves severest
penalties, 265-6.
power of a judge to enforce the peace,
318.
Birth:
criterion of advancement in army of
Belli's day, 15.
effect of subsequent, of son upon
soldier's will, 169.
Bishop. See Ecclesiastics, Bishops.
Bodyguard, an intermediate grade in army,
179.
Bologna, 115, 127,293.
Bonding and ransom replaces enslavement,
123-4.
Bondsman :
liability of, who guarantees maintenance
of a stronghold, 328, when the pledger
dies before making payment to the
principal, no.
Boniface (Count Bonifacius, d. A.D. 432),
Roman general, correspondent of St.
Augustine, advice to, 62.
Bordeaux, 90.
Border fortifications, right of rulers to
construct, after peace has been made,
300-2.
Bourbon, duke of, 298.
Bovo, Saint, quaestuaries of, 152.
Boys:
excused from military service, 15.
not immune from ills of war, 80-1.
Brandenburg and Brunswick, duke of, 241.
Branding:
in Roman army, 12.
not practised upon soldiers in Belli's day,
1 88.
Breastplate, loss of, how punished, 236.
Brigandage, what it is, v, 59.
Brigands, 127.
demands for ransom made by, 298*
validity of agreements among to divide
plunder, 147.
whether prisoners of, released on parole,
are bound by promise, 125-6.
whether ransom promised to, need be
paid, 88.
Brissac, Sieur de (Charles de Cosse, comte
de Brisaac, c, 1505-0. 1564), French
general:
captures Vignale after truce had been
made, 143.
makes truce with Ferrante di Gonzaga,
135-
Brittany, duke of, ceded by French king to
English king, 302.
Brunswick, duke of Brandenburg and, 241 .
Brussels, Belli consulted about a case in,
127-8.
Bruttians (Bruttii, tribe of late origin,
inhabiting the southern tip of Italy,
present day Calabria), 7.
Brutus, Marcus. See Junius Brutus, Marcus.
Buildings, ruinous, to be repaired by gover-
nor, 47.
Burial, right of, implies necessary permis-
sion to travel, 256.
Burning alive:
penalty for aiding enemy to plunder
friendly country, 241.
penalty for allowing enemy to devastate
one's district, 328.
penalty for treason, 233.
Business, jurisdiction over soldier in, 213.
Bussone, Francesco (duke of Carmagnola,
1390-1432), Italian general, decision
on a safe-conduct rendered to, 261.
Byzantium (Bvdvriov, ancient city, found-
ed by the Megarians; later Constanti-
nople; now Istanboul, surrender of (409
B.C.), unpunished by Spartans, 233.
Caelius Rufus, Marcus (82-48 B.C.) Roman
orator and politician, 45.
Caesar Augustus. See Augustus, Caesar
Octavius.
Caesar, Gaius Julius. See Julius Caesar,
Gaius.
Calais (city in France, formerly belonging
to English kings), English lose to
French (1558), 300.
Caligati (common soldiers), whence they
derive name, 179.
Caligula, Gaius Caesar (b. A.D. 12, chosen
Roman emperor 37, d. 41), where he
got his name, 179-80.
Calvus, Albertus, case of, cited, 199.
Camillas, Marcus Furius. See Furius
Camillus, Marcus.
Camp, 35.
prefect of, 35.
Camp followers, enjoy soldiers' privileges
in regard to wills, 170.
General Index
365
Campanians (inhabitants of Campania in
South central Italy), 107, 196, 303.
surrender of, 87.
Campus Martius (Roman exercising ground
and sacred field), 107.
Candelo (town in Piedmont, near Biello),
256.
Cannae, Battle of (August 2, 216 B.C., in
which the Romans were defeated by
the Carthaginians under Hannibal),
15, 1 6, 230.
Rome refuses to ransom its soldiers who
surrendered at, 226, 243.
Capenians (inhabitants of ancient Etrurian
town of Capena, colony of the Veien-
tines), 229.
Capitulation (see also Surrender), of
garrison under pressure from civil
populace, 240.
Captains :
discipline the soldiers, 238.
pay no attention to judicial rules, 180.
Captives :
derivation of word, 88, 122.
enslavement of, in accordance with law of
nations, 10, 85, 95-6.
failure of, to return home when given
opportunity: crime, 224, 231.
of public enemies and brigands, whether
bound by their parole to return, 125-
6.
ransom instead of slavery imposed upon,
9 8.
slaughter of, whether permitted, 85-6.
surrendered men are not, 87.
trustees appointed for property of, 109.
when, come into control of enemy, 106.
whether Christian, are slaves of captors,
95, 115-16.
whether mercy is to be shown enemy
commanders who are, 91.
whether opponents in civil dissentions
are made, 116.
whether wills of Christian, are valid,
95-6, 115.
Captivity:
effect of death in, on pupillary testaments,
iio-ri.
implies legal death, 109.
time spent in, by a soldier, counts as time
in service, 181.
Captor, dispute between, and comrade over
prisoners, 11617.
Capture :
by trickery, during truce, 142-3.
of property in unjust war, validity of, 60.
rights of, when there is more than one
claimant, 129-30.
under law of war affects property owner-
ship as validly as contract, 112.
when, becomes effective, 106-7.
whether, can occur more than once, 121-4.
Capua (originally Campanus : ancient city in
Campania, built by the Etruscans, but
belonging successively to the Oscans,
Samnites, and Romans): punishment
of, for desertion to Carthaginians, 231.
service done Roman prisoners at, by two
women, 233.
surrendered by Samnites, 87.
Caracalla (Marcus Aurelrus Antoninus
Bassianus Caracalla, b. 1 88, chosen
Roman emperor, 212, d. 217), decrees
restitution of property given by soldier
to his mistress, 214-15.
Cardinal of Trent. See Madrutz, Christoph
von.
Cardinals. Bee Ecclesiastics, cardinals.
Carignano, surrender of (1418 ?), 127.
Carmagnola, duke of. Bee Bussone, Fran-
cesco.
Carokus (a Renaissance French coin) :
value of, 174-5.
Carthaginian Wars. See Punic Wars.
Carthaginians: 7, 10, 6l, 229.
charged with perfidy, 88.
Reguius captured by, 126.
violate truce with Romans, 139.
Carthago Nova (Carthaginian city in Spain,
now Cartagena), 193.
Carventum (ancient town of Latium,
member of Latin League), 194.
Casale (town in Italian Piedmont, prov. of
Alessandria, ancient capital of mar-
quisate of Montferrat), 140.
Casilinum (ancient town of Campania,
near Capua; upon its site present city
of Capua was built), 194.
Cassius Longinus, Gaius (d. 42 B.C.), Roman
general and patriot, 193.
Castelnuovo (city in Illyricum, which is
present Jugo Slavia), 224.
Castile, 175.
Castle:
how far custodian must defend, 326-7.
liability of lord of a, for damages suffered
366
General Index
Castle: (cont.)
by traders to whom he has promised
safety, 273.
lord of a, may issue safe-conducts, 251.
powers and duties of custodian of, 324-5.
sale of a valuable, to satisfy debts, 269.
that parleys, 328.
Castor (classical Roman deity), temple of,
at Rome, 196.
Castrensiarii, 23.
Catapults, use of, in warfare, forbidden by
Church, 1 86.
Cateau Cambresis, Treaty of (April 3, 1559,
between Philip II of Spain and Henry
II of France), terms of, discussed, 280.
Catiline. See Sergius Catilina, Lucius.
Cato, Marcus Porcius. See Porcius Cato,
Marcus.
Cattle (see also Horses), indemnity for death
of, resulting from war, 151.
Caudium, Peace of (321 B.C., between
Samnites and Romans), 78.
Causes :
of damage, how to be considered in
granting indemnity, 150.
of war, distinguished by Baldus, 301,
justice of, discussed, 59-62, violations
of peace, 301.
responsibility of a ruler for waging war
for unjust or insufficient, 297-8.
support of wrong, 64*
whether peace is violated if new occasion
of war arises, 304-5.
Cavalry:
pay of, in Roman army, 196.
protectores serve in Roman, 20.
Celtiberians (race inhabiting central plateau
of Spain), mercenaries, desert Romans
for Carthaginians, 228.
Censor, 41.
a higher magistrate, 46.
Ctnsuales, 23.
Centinariiy 28.
Centurions :
called captains, in Belli's time, 180.
children sometimes appointed as, 177.
derivation of word, 28.
discipline soldiers, 238.
in Roman army, 29.
may make contracts for squadrons, 185.
punished by Appius Claudius, 243.
responsibilities of, increased under em-
perors, 30.
! rewarded by Papirius Cursor, 193.
Century (Roman military division), 22.
Ceresole, battle of (April, 1544), 83.
Cesena (town of Italy, prov. of Forli), 306.
Cession:
differs from compacts of peace and war,
302-3.
of duke of Brittany to king of England by
king of France, 302,
Chaldeans (XaXSaioi, a people who dwelt
in Babylonia), 61 .
Chamberlains, in the Roman civil service,
20.
Chance:
issue risked on, in single combat, 90.
of the dice, 152-3.
Chancellor, grand, 31, 51.
Charles I (1226-1285), duke of Anjou,
count of Maine and Provence, king of
Naples and Sicily :
combat arranged with Peter III of
Aragon, 90.
has Conradin decapitated, 91.
Charles III, il Buono (1486-1553), duke of
Savoy:
Francis I of France declares war against, v.
Charles V (Charles I, king of Spain, b. 1500,
d. 1558; Holy Roman Emperor, 1519-
1556), v, vi, 49, 244.
alliance of, with king of Persians, 93;
with king of Tunis, 92.
Belli at court of, 127.
Belli's comment upon restoration under
treaties of, with king of France, 319.
Francis I gives his sons as hostages to, 343.
honours sold in chancellery of, 191.
imposes peace upon duke of Saxony, 280.
omits name of Henry VIII from treaty of
Crepy, 290.
treaties of, with Francis I and Henry II
of France, 280.
treaty between Francis I and, (Crepy),
112.
Ghartularii) 22.
Chief:
at large, 37.
military, 24.
of accounts. See Accounts, chief of.
of finance. See Finance, chief of.
of records may reduce rank of soldier,
201.
of the cohortales, 25.
Chieri (town in Italian Piedmont), re-
General Index
367
tained by French under treaty of
Cateau Cambresis, 280.
Children:
and parents, cases between, 44,
effect of posthumous children upon
fathers' wills, 301.
gifts from parents to, legal status of, 1 60.
sometimes appointed centurions, 177.
suffer for treachery of father, 296.
Chios (Xlos, island in the Aegean), 227.
Chivasso (town in Italian Piedmont),
retained by French under treaty of
Cateau Cambresis, 280.
Christianity, offered American Indians as
alternative to slavery, 85.
Christian or Christians: 126, 213, 342.
Alexander Severus not a, 178.
alliances of, with infidels, discussed, 92-4.
are brothers and fellow citizens, 116.
capture and enslavement in wars of, with
Turks, 224.
enslavement of captive, 95-6, 115-16.
how ought to act, 229.
laws of postliminy and, 108.
should not aid infidels in their wars, 93.
under fetial law, 94.
unity necessary for, 93.
use of engines of war by, restricted, 1 86.
Church: 185.
restricts means of warfare, 186.
when bound to contribute with the laity,
155-
Churches. See Property, ecclesiastical.
Cicero. See TuUius Cicero, Marcus.
Cilicia (KAuoa, a country in Asia Minor,
later Roman province), 210.
Cilnius Maecenas, Gaius (d. 8 B.C.), Roman
statesman, patron of letters, appointed
administrator of Rome, 32-3.
Cambrians (Cimbri, a people probably
originating in the territory now called
Jutland), invasions of, 60.
Cincinnatus, Lucius Quinctius. See Quinc-
tius Cincinnatus, Lucius.
Cirdtores. See Roundsmen; Police.
Cities, giving of hostages by, 343-4.
Citizenship, mutual rights of, how affected
by war, 284.
Citizenship, Roman:
affected by extreme loss of civil rights, 79.
effect on war within the empire, 9.
granted to Campanian horsemen who had
remained faithful, 196.
Civil Law. See Law, civil.
Civil Rights, loss of, penalty for desertion
to enemy, 227.
Civil Service:
civil officers and adjustment of injuries
done to state, 316.
enjoy military privilege with regard to
fines, 1 80; punishments, 187.
members of, have absolute control over
their peculium castrense, 161.
Roman, described, 19 sq.
Civil War. to War, civil.
Claims:
financial, of fiscus, 43.
may be sold or transferred, 118.
Class Privilege (Tribus), case involving
testamentary transfer of value of, 204.
Claudius (Tiberius Claudius Drusus Nero,
b. 10 B.C., chosen fourth Emperor of
Rome, A.D. 41, d. 54), 53, 175, 196, 342.
Claudius, Appius (Appius Claudius Crassus
Inregillensis Sabinus, Roman general;
Consul, 471-45 1 B.C.), punishes army
for disgraceful retreat, 243.
Claudius Gothicus, Marcus Aurelius (b.
214, chosen Emperor of Rome, 268, d.
270) : honoured by Valerian with a gift
of free bread, 202.
Claudius Marcellus, Marcus senior (266-
208 B.C.), Roman general, 229.
and the discipline of the army after
Cannae, 243.
Clearchus (KX&pgo?, d. c. 400 B.C.),
Spartan general: surrenders Byzan-
tium, 233.
Clergy. See also Church:
and giving of hostages, 344-5-
captured property of, distributed by
French, 98.
should beware of taking part in war, 8l.
when obliged to contribute with laity,
155-
Clerks: 50.
in Roman civil service, 21.
Qodius Albinus (Decius Clodius Septimus
Albinus Augustus, Roman governor of
Gallia, co-emperor with Severus d.
A.D. 197): punishes a soldier, 178.
Cloelia (fl. c. 500 B.C.), traditional Roman
heroine, given as hostage to Porsena,
341.
Clothing:
not included under sustenance, 263,
3 68
General Index
Clothing: (cont.)
provided by state, 198.
supplied to Roman army by allies and
conquered enemies, 197-8.
transportation of, 25.
Clusinians (inhabitants of Clusium, q.v.),
82.
Clusium (ancient inland city of Etruria,
situated on the lake whose modern
name commemorates it 'Lago di
Chiusi'), 82.
Cluvia, 1 Pacula (fl. c. 210 B.C.), Capuan
prostitute, heroine of Second Punic War,
rewarded for aiding Roman prisoners,
233-
Cluviae (Samnite city in central Italy),
people of, capture Roman garrison, 86.
Coach, mark of rank, 38.
Coactores, collectors of bad debts, 210.
Coastguard, colonial, 16.
Code, Ferial. See Law, Fetial.
Codicils. See Wills and Testaments.
Cobortales, duties, rank, and privileges of, 25.
Cold, suffering caused imperial army by, at
Metz, 244.
Collatini (inhabitants of Collatia or Col-
latina, Latin city probably about 10
miles E. of Rome), 87.
Collectors:
in Roman military service, 25, 26, 27.
of bad debts (coactores\ 210.
Colluders:
called traitors, 295.
described, 294-5.
Colonels in Belli's day, 180.
Colonists, crown, jurisdiction over cases
pertaining to, 53.
Colonna, Pirro (?).
promise exacted from, at Carignano, 127.
Colour-bearer, in Roman army, 29.
Columbus, Christopher (c. 1440-1506),
navigator, discovers America, 85.
Combat arranged between Peter of Aragon
and Charles of Anjou, 90, See also
Single Combat.
Comitatenses defined, 36.
Comitatus defined, 36.
Comite, Bernardus de 112.
Comitium (in Roman forum); deserters
beaten to death in, 224.
Command:
governor's right of, 48.
refusal to relinquish, when ordered, 241.
Commander-in-chief (see also General), 40,
powers with regard to safe-conducts.
251-2.
sometimes shares in plunder, 194.
Commanders, 38:
may not execute soldiers without con-
sulting emperor, 1 80.
modern, confer honour by reason of birth
and family, 15.
of fortresses, who permit the enemy to
devastate their district, how to be
punished, 328.
of garrisons, authority in regard to safe-
conducts, 252.
pay no attention to judicial rules, 180.
power over promotion and demotion,
201.
right of, to make truces and peace, 135-
6.
froximi ranked with Roman military, 22.
Commands, committed to proconsuls, 43.
Commissary-general, same as food adminis-
trator, 25, 198.
Commission: substitution of another person
to do that for which one has received
king's, 325-6.
Commissioners of pastures, 37.
Communication with enemy:
allowed to provincials with good reason,
121.
a military crime, 241.
Compacts. See Treaties; Peace, Treaties
and Compacts of.
Companies, military (uexillationes\ rights
of, in estates of soldiers who die without
heirs, 184.
Concubine: 215.
cannot inherit from soldier, 177.
Confession, sacramental, whether the for-
giving of injury in, is a sign of peace,
334-
Confessors, religious, who grant absolution
to those engaged in unjust war, 60.
Conradin the Swabian (1252-1268), last of
German Hohenstaufen, executed by
order of Charles of Anjou, 91.
Consent of minor to alienation of property,
213.
Conspiracy to kill certain officers is treason,
184.
Constable :
Grand Constable, 31.
may contract for his troop, 185.
General Index
369
Constantine the Great (Flavius Valerius
Aurelius Const antinus, b, 272, d. 337),
first Christian Emperor of Rome, law
of, cited, 179.
Constantinople (see also Byzantium), Kov-
uTOLVTivoTToXiSi seat of Roman Em-
pire (330-395), and later, of Eastern
Roman Empire; now Istanboul, 28,
233, 279.
Construction, strict, when to be applied,
262-3.
Consuls :
appoint city prefect, 32.
higher magistrates, 46.
may not adjust injury done to state,
316.
office and powers of, 42-4.
possess military imperium, 28.
praetor and election of, 44-5.
Contract :
action based on implied, 128.
capture under law of war affects property
ownership as validly as, 112.
effect of foreseeable disaster upon lessee,
152.
for squadron, by whom to be made,
185.
idea of, approximated in tenant farmer's
agreement, 152.
illegal and forced, to be prevented by
governor, 47.
legal effect of, 319.
strict form of agreement, 290.
validity of, in virtue of prospects of post-
liminy, 1 10, of immunity with charac-
ter of, 154-5, of a self-heir's, 109.
whether forfeiture of penalty for breaking,
prevents suit from being brought for
performance, 310-11.
Contratabular Proceedings. See Wills and
Testaments.
Contributions, illegal and forced, 47.
Conversation, a sign of peace, 334.
Copper, being coined at Rome (A.U.C. 347),
Corbulo, Gnaeus Domitius. See Domitius
Corbulo, Gnaeus.
Cornelius Lentulus Spinther, Publius (fl.
c. 50 B.C.), Roman governor of Sicily
and Cyprus, 30.
Cornelius Scipio, Publius (d. 211 B.C.),
Roman general, father of Scipio
Africanus, 228.
1569.64 :
Cornelius Scipio Africanus, Publius ('Scipio
maior', 235-183 B.C.), Roman general:
Indibilis's speech on his desertion to,
231.
rewards first soldiers to scale walls of New
Carthage, 193.
spies sent out by, 234-5.
upholds a truce violated by Carthaginians,
139-
Cornelius Sulla, Publius (d. 45 B.C.), Roman
officer and politician, excused by
Caesar for apparent lack of initiative,
237-
Corniculariiy 24.
Coronatus, See Crown (coin).
Corporal, as a disciplinarian, 238.
Corporal punishment (see also Punishment),
242.
bondsman for custodian of stronghold not
liable to, 328.
Corporations and Associations :
how penalty may be imposed upon, 313.
under whose jurisdiction in Roman Civil
Law, 33.
Correspondence, bureau and chief of, 35.
Cortemiglia (town in southern Piedmont),
241.
Corvus, Marcus Valerius. See Valerius
Corvus, Marcus.
Counsellors of Emperor, 20, 52.
Count, 42, 49.
defined and described, 36-9.
emperor is a, 41.
forbidden to flog recruits, 13.
higher magistrate, 46.
military, 37, 40.
of first rank, 26.
of Orient, 25.
of private affairs, of royal wardrobe, of
privy treasury, 14.
rank of, who is ex-governor of a province,
26.
Count Albert, gives assistance to exiles from
Bologna, 293.
Courier. See Messenger.
Court, Imperial Roman, 25, 26, 180.
transfer of grants of offices in, 206.
Court, Papal, rule of, in regard to some
cardinals' wills, 161.
Courtesan:
cannot inherit from a soldier, 177.
feeds captive soldiers at Capua, 233.
soldiers* gifts to a, 211.
General Index
Courtesy, a sign of peace, 334.
Courtiers debarred from military service,
17-
Covenant :
keeping of faith with, breaker of, 139.
sacredness of a, 139-40.
Crastinus, Gaius (Primipilus of the Tenth
Legion in Caesar's army, 49 B.C.), 30.
Creditors :
claims of, against grants of emperors, 205,
against debtor after his property has
been sold, 269.
of soldier, and military privilege, 182.
safe-conduct to protect debtors from;
five-year respite; majority of, 266.
thwarted by bankrupts, 266-7.
Cremona (Italian city), 285.
Crepy, Treaty of (September, 1544, between
Francis I of France and the Emperor
Charles V):
discussed, 112.
name of Henry VIII omitted from, 290.
Crimes (for specific crimes, see below, under
Crimes, committed by soldiers; for
other crimes, see under name of parti-
cular offence}-.
committed in time of war, responsibility
for, v.
committed by soldiers, discussed, 221-46:
false enlistment, evasion of service,
prevention of service, mutilation to
prevent service, 221; straggling, deser-
tion, 221-2, 224; desertion to the
enemy, 222-3; evidence, 226; pardon,
desertion of subjects, 227-8; of non-
subjects (mercenaries and auxiliaries),
228-9; honoured, 229-30; comes
under charge of treason, 233-4;
desertion for purposes of espionage,
234-5; of vassals, 239; desertion from
post, sleeping at post, desertion from
the emperor's watch, 224; falsification
of reports, misappropriation of funds,
223, 246; failure of a captive to return
home when there is opportunity,
escape, 224-5; unwarranted personal
surrender, 2256; unwarranted sur-
render of a garrison or fortress, 239-40;
defection of towns and states, 230-3;
surrender of towns and states, 232-3 ;
treason, 233-4, 240-1, see also
Treason; espionage, 234-5; mutiny,
> revolt, disobedience, 236, 237;
loss of arms, transfer of arms, theft
of arms, 236; insubordination, 237;
falling out of line, 237-8; refusal to
enrol, failure to appear at roll-call,
assault upon an officer, resisting
an officer, resistance in general, 238;
failure to defend an officer, condone-
ment of failure to defend an officer,
starting a retreat, laziness, sloth,
feigned illness, 239; surrender of a
town, the garrison commander being
pressed by civilian inhabitants, 240;
holding a levy, organizing an army
j or waging war without permission,
| fortifying a citadel or castle, refusal
j to relinquish command to a successor,
leading an army into ambush, selling
or giving supplies, &c. to enemy,
attempting to kill an official, estrange-
ment of a friendly king, frustrating
plans against enemy, communication
with enemy, bearing communications
to enemy, betrayal of watchword,
stirring up military revolt against em-
peror, betrayal of a state or province
to enemy, aiding enemy to plunder
friendly country, entering a forti-
fication over entrenchments, 241;
armed assault upon another soldier,
241-2; a slave enrolling, escape from
confinement, disturbing peace, allow-
ing a prisoner to escape, unfilial con-
duct (abusive language), leaving post,
242.
flagrant, and discretionary punishment,
48-
military, punished with varying degrees
of severity, 235.
not covered by a safe-conduct, 272.
punishment of, see under each crime,
where punishment is usually discussed.
See also under Punishment.
Criminal cases, 54.
ignorance of law, and, 177.
Criminal process, 53.
Criminals, granting of safe-conducts to,
and their revocation, 253, 254, 266.
Crown (the head-dress) :
civic, highly valued, 195.
given as a reward for valour, 194.
Crown (the coin) :
value of, 173-5.
weight of gold, 196.
General Index
Crucifixion, Romans who deserted, punished
by, 224.
Cuirassiers, 35.
Culprits, soldiers not to be executed without
consulting emperor, 180.
Cuneo (Italian province, in Piedmont),
Curia (court), 25.
Curiales, 25.
Curule chair, part of praetor's regalia,
49;
Custodian :
defence of castle left in his charge,
326-7.
liability of, to punishment, 325.
powers of, 324-5.
responsibility of bondsman for, of a
stronghold, 328.
Custom, effect of lapse of time upon a
wrong, 335.
Cyrus the Great (Kvpos, d. c. 530 B.C.),
founder of the Persian empire, Araspes
acts as spy for, 234.
Darius III (Aapelos, Codomannus; last
king of ancient Persia, crowned 336
B.C., d. 330 B.C.), subdued by Alexander,
279.
Darts, use of, in warfare, forbidden by
Church, 186.
David (fl. c. loco B.C.), 2nd king of Israel,
psalmist, 62, 96.
disregards an oath, 94.
fear of Philistines, his allies, that he will
turn upon them, 93.
takes refuge with king of Gath, 92.
war of, against Ammonites, 8.
Death:
as result of wounds, responsibility for,
151-2.
captivity is equivalent to legal, 109.
effect of, in captivity on pupillary testa-
ments, iio-ir.
Death penalty. See also under name of crime:
execution of, on soldiers, 180.
of an entire legion, for mutiny, 235.
punishment for armed assault upon an-
other soldier, 241-2.
assault upon a superior officer, 238.
disturbing peace, 242.
entering a fortification over entrench-
ments, 241.
escaping from confinement, 242.
failure to appear at roll call, 238.
failure to defend an officer, 239.
feigning illness, 239.
insubordination, 237.
laziness and sloth, 239.
loss of arms, 236.
resisting an officer, 238.
starting a retreat, 239.
slave having himself enrolled in the
army, 242.
theft, 245.
Debarment:
from civic functions, a usual type of
punishment, 242.
from military service, 15-16.
Debt. See Debtor and Creditor; Debtors;
Bad Debts; Limited Liability for Debts.
Debtor and Creditor. See also Debtors;
Creditors :
development of law of, in Roman system,
271.
effect of amnesty upon persons' sentences
for debt, 280.
'five-year respite', 266, security to be
given by a person wishing to enjoy,
272.
how debtor who leaves with creditor's
permission reverts to former status,
324-
relations between debtors and creditors,
266-7.
whether a safe-conduct covers debt
secured by oath, 272.
Debtors:
claims upon, for payment a second time,
285.
liability of, after surrender of estate, in
case of change of fortune, 268, 269.
option given to, under 'five year respite*,
266.
payment by, after surrender of estate, to
extent of their ability, 270-1.
reversal of decision after surrender of
estate by, 267-8,
safe-conduct to protect, from creditors,
266.
sale of property of, 54.
statutes degradmg to, 267.
subsequent income of, classified 268-9.
surrender of estate by, 269, by a corpora-
tion, 269.
Debts, bad. See Bad Debts.
Decani, Roman commanders often, 24-
372
General Index
Decapitation:
breaking on wheel and, punishment for
surrender of post for money, 328.
deserters possessing Latin rights punished
by, 224. f
flogging and, punishment visited by
Appius Claudius upon his army, 243.
less disgraceful punishment than hanging,
187, 224.
of the Capuan senators, 231.
of those responsible for the surrender of
Nepete, 232.
punishment for mutiny, 235.
Deception, use of, involving no treachery,
88.
Decimation:
of a cohort which started a retreat,
2 43~4-
visited by Appius Claudius upon his army,
243.
Decisions, governors forbidden to reverse
their judicial, 48.
Decius Mus, Publius (fl. c. 345 B.C.), Roman
hero, rewarded for valour, 193.
Declaration, soldier's failure to make,
179.
Declaration of War :
against whom directed, 83-4.
authority for making, rests with sovereign,
6.
by Francis I of France against Charles of
Savoy, v.
by subordinate princes, 6.
discussed, 77-80.
grounds for, iv, v, 59-62.
lapse of time between, and beginning of
hostilities, 79, So.
not necessary against pirates, 83.
whether adherents are included in, be-
tween principals, 290-1.
whether new is required after truce has
run out, 144.
who may make, 6-7.
Decurions, 20, 188, 318.
Deductions from soldiers* wills under Tre-
bellian and Falcidian laws, 172.
Defection of towns and states, 230-3.
Defence:
as a criterion for judging right to build
border fortifications, 300-1.
under natural law, Bartolus on, 65.
unjust, ranked with unjust aggression,
50-60.
del Vasto, the marquis. See Avalos,
Alfonso d'.
Denariolus, value of, 173-5.
Denarius (a Roman coin), 194.
value of, 173-5.
weight of, 196.
Departments, counts of, 37.
Deputies :
froximi ranked with governors', 22.
soldiers as, 212.
Dereliction of one party to a treaty of peace,
effect of, 309.
Deserters, 12, 89:
and postliminy, 104.
equal punishment not always meted out
to, 221-2.
have no rights, 1 1 .
Italians frequent, in Belli's day, 226,
227.
on what grounds captured, are pardoned,
227.
slaughter of captured, 86, to the enemy,
234.
Desertion:
by a vassal in battle, 71-3, in war, 72-3.
cases of treacherous, 229.
cities guilty of, which return voluntarily,
231.
distinguished from straggling, 221.
from post, how punished, 224-5.
from the emperor's watch, how punished,
224.
how discouraged, 208.
of service, compared with desertion to
enemy, 227.
punishment for, 72, 222, 224.
to the enemy, 222-3 :
added to another crime, 223.
absolutely forbidden to subjects, 227.
for purposes of espionage, 234, 235.
frequency of, in Belli's day, 226-7.
how punished, 223.
in time of truce, 225.
of Capua, punished, 231.
of Indibilis and Mandonius, 231.
of Masinissa, was not treacherous,
229-30.
of non-subjects and mercenaries, 228.
of vassals and non-vassals, 228.
voluntary and involuntary, 181.
Dice, hazard of the, 152-3.
Diocletian (Gaius Aurelius Valerius Diocle-
tianus, b. 245, chosen Roman emperor,
General Index
373
284, resigned the imperium, 305, d.
313), makes changes in provincial ad-
ministration, 28.
Disability, military. See Military Disability, j
Discharge from military service, effect of:
on soldiers' wills, 172; dishonourable,
on military privilege, 180; dishonour-
able, on residence in Rome, 246.
should not be subject to commander's
caprice, 173.
Discipline, military. See Military Discipline,
Discretion; 'living at', 76-7.
Disobedience of orders, military crime, how
punished, 236-7.
Dispossession of property, 54.
Dissention, civil, status of opponents en-
gaged in, 1 1 6.
Disturbing the peace, crime, how punished,
242.
Divorce, tolerated among the Jews, 335.
Doctors :
belong to civil service, 187.
may dispose of their peculiwn castrense,
161.
precedence of, in Roman practice, 38.
special privileges of, 187.
Dominion, legal and customary methods of
conferring, 90.
Domitius Ahenobarbus, Gnaeus (d. 31 B.C.)
Roman politician, son of the following,
3;
Domitius Ahenobarbus, Lucius (slain at
Pharsalia, 48 B.C.), Roman general, 30.
Domitius Corbulo, Gnaeus (d. A.D. 67),
Roman general, discipline of army as
maintained by, 244-5.
Donatus, Aelius (b. c. A.D, 333), Latin
grammarian, 202.
Double-ration men, punished by Appius
Claudius, 243.
Dower, 112.
confiscation of, to satisfy husband's
debtors, 30.
execution of dower contracts in case
of marriage of soldiers of high rank,
179,
restoration of, if wife is taken captive,
109.
when to be considered part of peculium
castrense, 1 60.
Drachma, Attic, value of, 173-5.
Dress:
caliga, described, 179.
military, does not return by postliminy,
105-
of common soldier worn by child Caligula,
179-80.
Drinking together, a sign of peace, 334.
Drusus, Claudius Nero (b. 38 B.C., d. 8 B.C.),
Roman general, suppresses revolt in
Pannonia, 235.
Ducenarii, 28.
Duel:
developed under Lombard Law, 335.
illegal, and inspired of Hell, 334-5.
no test of verity, 69.
repugnant to law, 335.
Duke, 49, 98.
duties and rank of, 41-2.
emperor is, 41.
higher magistrate, 46.
Dye-works, directors of, 37.
Easter:
battle fought on, 83.
war forbidden from Septuagesima to,
82.
Ecclesiastics :
debarred from military service, 16-17.
lose status if they wound or kill, 9.
Ecclesiastics, Abbots :
and giving of hostages, 344.
may make peace for their monks, 316.
Ecclesiastics, Bishops :
and giving of hostages, 344.
appeal to, for redress of wrongs, 10.
institute actions for injury of their priests,
. 3' 6 '
investigation by, before clergy are to be
taxed, 155.
sometimes engage In warfare, 17.
Ecclesiastics, Cardinals, 21.
execution of wills of some, subject to
Pope's permission, 161.
may be deposed by Pope, 41.
Ecclesiastics, Monks:
abbott may make peace after an injury
done to one of his, 316.
and giving of hostages, 344.
property captured from, distributed by
French, 98.
protected in war time by canon kw, 81.
wiHs of, who have been made cardinals,
161.
Ecclesiastics, Prelates, right of, to make war,
9-
374
General Index
Ecclesiastics, Priests :
injury to, how settled, 316,
Jewish, received a tithe from plunder, 97.
protected in war time by canon law, 81.
Edicts of the Praetor, 45.
Egypt, 38, 60, 245.
administration of justice in, under
Augustus, 53.
count and finance officer of, 36.
Solomon makes an alliance with king of,
92.
Election confers dominion, 90.
Emancipation:
adoption of a son after, 336-7.
by a governor, of his own son, 47.
by fideicommissum under a soldier's will,
I72 :
necessity for a slave's, before receiving
inheritance from soldier, 207-8.
Emmanuel Philibert, duke of Savoy (1528-
1580), recovers territory under Treaty
of Cateau Cambresis, I So.
Emperor. See also under individual names of
emperors-. 9, 10, 13, 19, 23, 25, 26, 43,
51, 52, 56, 71, 84, 85, 95, 98, 106, 108,
H2, 115, 123, 155, 171, 181, 184, 188,
189, 197, 198, 202, 204, 205, 206, 207,
208, 210, 211, 223, 240, 241, 242, 246,
251, 257, 263, 264, 266, 270, 271, 324,
343-.
all punishments discretionary with, 245
6, 325-
and civil service, 20 seqq.
appoints additional quaestor, 50.
appoints vicegerents, 40-1.
care of, for army and soldiers, 1 86.
chooses commanding general, 17.
coronation of, 73.
danger of fire in camp of, 235.
death of, brings war to a close, 96.
dignity and power of, 322.
enslavement of captives in a war declared
by, 96.
grant of precedence by, 38.
has right to declare war, 6.
immovables captured in war belong to,
. 97 '
indulgence extended by, to per sons guilty
of crime, 283.
is a Duke, Marquis, and Count, 41.
may depose a Baron, 41.
may deprive vassal of his fief, without
snowing proof, 321.
oath of soldiery to, 12.
officers of household and privy council of,
37<
outlaws public enemies, 83.
passes judgement upon provincial muni-
cipal senators, &c., 49.
pays all city prefect's debts at his corona-
tion, 140.
power of issuing safe-conducts, 254.
procurator of, 52-5.
sends dukes and provincial governors to
rule provinces, 42.
service to be rendered to, by soldiers,
1 86.
should be defended, 62.
single combat improper for, 90.
stirring up military revolt against, a crime,
241.
to be consulted before a soldier is executed,
1 80.
tries persons of rank accused of crime,
183-4.
under what conditions an order of, is
binding, 321.
vassal of, may make alliance with another
king, 292.
Empire. See Holy Roman Empire.
Empire, Roman. See Roman Empire.
Empress Theodora, 17.
Enactments, bureau of, 35.
Enemies, public. See Public Enemies.
Enemy:
binding force of pledges and oaths to,
and agreements with, 88.
case of a noble who aided, 294-5.
case of a safe-conduct issued to an am-
bassador of, 255-6.
conquered, obliged to supply Roman
army with money, &c., 197.
differs from a rebel, 9.
frustration of plans against, a crime, 241.
how war is to be waged against, 89.
immunity of envoys of, 81-2,
in civil dissentions opposing parties are
not, 1 1 6.
one's right ought not to be impaired by
action of one's, 303.
retention of things captured from, in just
war, 298.
rights of, to be observed, 126.
safe-conduct issued to, 251, 253, 260, by
commander-in-chief alone, 251-2.
selling, or giving supplies to, a crime, 241.
General Index
375
stronghold seized by, restoration of,
299-300.
validity of sale of original properties of,
no.
whether provincials may visit territory of,
121.
Enghien, the Comte d 5 , makes truce with
the Marquis del Vasto, 135.
England, King of:
continental territory of, protected by
border fortifications, 300.
duke of Brittany (Arthur) ceded to, by
king of France, 302.
Enlistment of troops. See Levy of Troops;
Enrolment.
Ennius, Manius (castrorum presfectus, A.D.
14), Roman knight, puts two soldiers
to death, 180.
Enrico or Enzo (1224-1 272, king of Torres
and Gallura (Sardinia), natural son of
Frederick II), dies in captivity, having
made his will while captive, 115.
Enrolment (Registration of enlisted
soldiers): 13,
age requirement for, 15-16.
false, 221.
of older men, 15.
privileges of court incident upon, 184.
refusal to enrola crime ; howpunished, 238.
Enslavement. See also Slave; Slavery:
and servitude, replaced by ransom, 98,
118, 123-4.
in galleys, of men surrendered in war, 318.
in war between free states of Italy and
Empire, 9, 10.
not dependent upon war alone, 85.
of captives, 10, 85, 95-6.
of Christian captives, 95-6, 115-16.
outgrowth of law of nations, 341.
right of, based upon law of nations, 7.
right of, does not apply in civil war, 10.
under civil law, 7.
Entertainment, soldier's exemption from
duty of, 185.
Envoys. See also Ambassadors:
of the enemy, immunity of, 81-2.
sent to Alba by Tullus, 78.
surrender for a people, 87.
Epiphany, feast of, war forbidden from
Advent until octave of, 82.
Escape:
agreement not to, 122.
allowing a soldier in confinement to, 242.
from confinement, a crime, 242,
Escaped prisoners of war enjoy right of
postliminy, 104.
Espionage, how regarded, 234, 235.
Estates. See also Succession; Wills and
Testaments ; Inheritance :
inventory of, 178-9.
of a soldier who dies without heirs, 184.
restoration of, lost on account of a war,
280-1.
soldier's recovery of his own, or his
father's, 208.
succession to a wife's, and peculium
castrense, 160.
Este, don Francesco d', 263, 264.
Eteonicus ('JSn-eoVi/cos, fl, c. 400 B.C.), Spar-
tan general, 227.
Etruscans, (Etrusci, Tusci, called by the
Greeks Tvppfjvoi (Tyrrhenians), or
Tvpcrrjvoi (Tyrsenians); ancient Ital-
ian race inhabiting that portion of
the Italian peninsula known as Tus-
cany)-^, 193.
Eunuchs, appointed generals, 17.
Europe, 61,71, 195.
Evidence, hearsay, 320.
Examination :
of a prisoner, 43.
of candidates for enlistment, 12.
of country people, 50.
Exception:
right of soldier to interpose a peremptory,
during execution of sentence, 185.
to an action instituted to claim an estate
(dolo$etis), 280-1.
Exceptoresi
also called scriniarii, 22.
service of, honourable, 23.
Exchange, discussion of the values of the
as, denarius, coronatus (crown), sester-
tius, Caroleus, denariohs, quatrinus,
parpagliola, soldo, grosso, real, aureus,
marcketus (mark), drachma, 173-5.
Exclusion :
from service, a military punishment,
242.
of criminals, within power of governor,
49-
within power of procurator, 54*
Excommunication. See also Anathema:
threat of, to force the making of peace,
318.
Executive functions of a proconsul, 43.
376
General Index
Exempt persons, when obliged to contribute
in tax levy, 153-6.
Exemption:
from military service, 16.
from taxes levied on account of a war,
153-6.
Exile:
as punishment, 212, 221.
exiled person as legatee under soldier's
will, 172.
granting of safe-conducts to exiled per-
sons, 253, 254,
injury to exiles sanctioned by statute,
305.
persons exiled for crime do not profit by
amnesty granted to rebels, 280.
validity of claims of indebtedness held by
an exile, 284-5.
ExsecutoreSj in Roman military service, 25.
Fabius Maximus Rullianus, Quintus (fl. c.
322-295 B.C.), Roman general, 193 ?
hailed as 'patron' by his army, 194,
rewards his soldiers after rout of Samnites,
.194-
tried for disobedience of orders, 236-7.
Fabius Maximus Verrucosus, Quintus (fl.
c. 314-312 B.C.), Roman general, ad-
vice of, with regard to Altinius, 230.
Fabius Quintilianus, Marcus (*Quintilian',
c. A.D. 5o-c. iiS), Roman rhetorician,
on soldier, 200.
Fabius Vibullanus, Quintus (Consul, fl. c.
465 B.C.), 196.
Fabricius Luscinus, Gaius (fl. 3rd century
B.C.), Roman statesman, ambassador,
and general, praised, 88, 89.
Faith:
fair price an evidence of good, in business,
209.
must be kept with enemy, 88, 126.
need not be kept with covenant breaker,
139.
Faliscans (inhabitants of Falerii, Etruscan
city, not to be confused with later
Roman city of same name, now Sta.
Maria di Fallen), 7, 80, 194, 229.
Falling out of line :
how punished, 237.
prevention of, in Belli's day, 237-8,
False witness, soldier amenable to common
kw for bearing, 215.
Falsification of reports, a crime, 223.
Farmers :
debarred from military service, 17.
protected in war time by canon law, 81.
Fasces :
part of praetorial regalia, 49.
part of proconsular regalia, 44.
Father and Son. See also P atria Potestas:
whether father can make peace for son,
315-16.
whether son can remit injury done to his
father, 316.
Father-in-law, liability of, limited, 270.
Fault, importance of weighing, 326.
I Fear, inseparable from violence, 311.
I Felony, effect of acquittal from charge of,
| upon succession, 281-2.
I Ferdinand V ('The Catholic', 1452-1516),
| king of Castile and Aragon, 83 .
s patron of Columbus, 85.
[ Ferrara (city of Italy, prov. of Emilia),
; 300.
duke of, 300.
Fetial Code. See Law, FetiaL
Fetiales (order of Roman priests) :
and declaration of war, 78, 79.
'code' of, 78.
Feud. See Fief.
Feudum de caneva, 202.
Feudum soldatae, 202.
Fideicommissum, 182, 203.
and soldiers' wills, 164-5, 169.
emancipation under, in soldiers' wills,
renunciation of a, from father, 213.
resumption of, not helped by birth of
son, 215.
Fidenae (ancient Latin town near Rome,
site of present Cast el Giubileo),
surrendered people of, sold as slaves,
Fief, 42.
forfeiture of, for adherence to enemy of
lord, 292, for desertion, 72.
free, and vassal's obligation to his lord in
war, 66.
liege, and vassal's obligation to his lord in
war, 67.
purchased from emperor, 205.
sovereign's power over rights of succes-
sion to, 90.
vassal not deprived of, unless guilt is
proved, 320.
Field of Honour. See Duel.
General Index
377
Figueroa, Juan de, 256.
Filiusfamilias :
control of soldier who is, over feculium
castrense, 161.
will of, in Belli's time, 190.
Finance:
chief of, 52-3, 55.
count of Italian, 37.
finance officer of Egypt, 36.
Fines:
assessed for injury done to a priest, how
divided, 316.
procurator may not impose, 54.
soldiers not to be punished by, beyond
their resources, 180.
usual type of punishment, 242.
Fire-arms:
common in Belli's day, 186.
Firewood, 199.
First-fruits offering to God, from plunder,
97-
'First javelins' in Roman army, 29.
Fiscus (set also Procurator; Treasurers;
Treasury), 52, 208.
action of, for penalty imposed by state,
313.
advocate of, 53, 54, 55.
claims of, oveTpeculium castrense 9 172.
counts of, 36, 37.
debts to, not covered by safe-conduct,
financial claims of, cases involving, 43.
procurator of, 52, 53, 54.
property of rebel escheats to, 112,
soldier forbidden to report derelictions to
the, 212.
when the estate of soldier falls to, 177;
when not, 184.
Five Years' Truce. See Truce of Vaucelles.
Hogging:
and beheading, punishment ordered by
Appius Claudius for his army, 243.
ordered for bankrupts by Hadrian, 267.
punishment for falling out of line, 237,
Florence (Firenze), 9, 99.
Florentines, 10.
Followers z
governor acting as judge of his own, 48,
of soldiers enjoy soldiers* privileges in
regard to wills, 171.
Food:
for Roman army, no exemptions from
collection of, 198,
1569.64 -
gifts of, to a governor, 48.
punishments involving, 243.
transportation of, 25.
Food administrator :
and city prefect administer supplies, 33.
duties of, of Belli's time compared with
Roman officials, 198.
office of, conferred upon Ulpian, 25.
Foragers :
liability of, for theft and cattle-stealing,
299.
stolen goods seized from, by enemy,
must be made good by original seizers,
298-9.
Force, whether provincials may resist force
with, 120.
Foreigners, 9.
punished less severely than Romans, 224.
Fort, Fortress. See Fortifications.
Fortifications. See also Border Fortifica-
tions, 35.
building of, on a vassal's estate, to be at
whose expense, 299.
responsibility of bondsman of custodian
of a stronghold, 328.
restoration of strongholds captured in war
by other than enemy, 298, 299, 300,
surrender of strongholds under peace
compact, 302.
temporary fortifications, to protect
church, 155-6, 299.
France, 187, 206, 259.
France, King of. See also Francis I, Henry II,
Louis XII, Philip II, 71, 263, 290, 298,
303-
builds fortifications along English con-
tinental border, 300.
cedes Duke of Brittany to King of Eng-
land, 302.
right of, to declare war, 6.
treaties of, with Charles V and Philip II,
restoration under, 319,
Francis I (b. 1494, crowned king of France,
1515, d.1547), 5.
declares war against Charles of Savoy, v.
gives his sons as hostages to Charles V,
343-
pacts concluded with Charles V, 280.
treaty (Crepy) with Charles V, 112;
name of Henry VIII omitted, 290.
truce (Nice) with Charles V, 137.
Francis (of Assisi), Saint, order of. See
Friars Minor, Order of.
General Index
Franciscans. See Friars Minor, Order of.
Frederick II (1194-1250), Holy Roman
Emperor, king of Sicily, father of
Enrico, 115.
Free- bread, a perquisite of soldiers, 201.
Freedmen: 33,
cases involving, and masters or patrons, 44.
limitations upon succession to property
of, 109.
rank of Claudius's, 53.
value of an impending class-privilege
transferred by wills of, 204.
French: 84, 106, 112, 256, 264.
at Ravenna and Ceresole, 83.
capture Alba, 327.
case of Frenchman who surrendered his
post for money, 328.
deserters, in Belli's day, 227.
distribute captured lands, 105.
in Piedmont, 140.
make grants of captured property, 98.
promise exacted by, at Carignano, 127.
spy at Milan, 234,
Valenza surrendered to, 327.
Friars Minor (Franciscans, Cordeliers),
Order of, members of, who own
property, not exempt from taxation,
211.
Friends, whether included in peace between
principals, 290-2.
Frontinus. See Julius Frontinus, Sextus.
Fulvius Flaccus, Quintus (d. c. 200 B.C.),
Roman general, treatment of nations
which had deserted, but surrendered,
231.
Funds and quaestor, 50-1.
Furius Camillus, Marcus (d. 364 B.C.),
Roman dictator and general :
gives plunder to army, as reward, 193.
orders military enrolment of older men,
15-
reproves Faliscan schoolmaster, 80-1.
triumphant entry of, into Rome, 193.
vows a tithe of spoils ofVeii to Apollo, 97.
Furius Medullinus, Lucius (fl. c. 407 B.C.),
Roman military tribune with consular
power, 196.
Fumarius, Joannes Baptista, Genoese sol-
dier, case of, 327.
Gabii (ancient city, near Rome, site of
present ruin called Castiglione), spied
upon by Sextus Tarquinius, 234*
Gain, issuance of a safe-conduct for, 254.
Galeton, Treaty of (May 18, 1200, between
Philip II of France and John of Eng-
land),Philip's vassal (Arthur of Brittany)
ceded to John by, 302,
Galleys, 187.
Games and public spectacles regulated by
city prefect, 33.
Gate-privileges, 203.
Gath (Peti, Terra, Philistine city, on the
confines of Judea, present village of
Beit-Jebrin ?), king of, enlisted by
David against Saul, 92, 93.
Gaul (Gallia), 60.
Gauls, 7, 61, 193.
General:
choice of, rests with emperor, 17.
distribution of immovables captured in
war, 97.
division of plunder by, 96-7, 194.
duties of, 18-19.
extent of jurisdiction, 99.
Greek, makes a short truce, 135.
liable to punishment, 246.
making of peace by, 296.
observance of neutrals' rights by, 99.
purchase of property or acceptance of
gift by, 208.
rank of, 25-6.
rewards granted to Roman, 193.
service to be rendered to, by soldiers,
186.
to be tried for crime by emperor, 183.
whether single combat may be engaged
in, by, 80-90,
Genoa, 303, 327, 328:
birthplace of Columbus, 85.
truce of, with Pisa, 323.
George, Saint, 203.
Germanicus (Caesar, 14 B.C.-A.D. 19),
Roman general, father of Caligula,
179.
Germans: 127.
build barracks of reeds and straw, 235.
German army, 241.
German deserters, in Belli's day, 227.
judge crimes according to their own law,
242.
pay received by German infantry, 174.
peace imposed upon, by Emperor Charles
V, 280.
promise exacted from German troops at
Carignano, 127.
General Index
379
Germany 171, 235, 244.
Gifts:
for an improper purpose, 214-15.
from soldier to his mistress or concubine,
189, 211.
parental, to soldier, 160.
to certain officials, 208-10.
Gold, count of, 37.
'Golden Rule' from lips of Alexander
Severus, 177-8.
Gonzaga, Ferrante di (1507-1557), Italian
soldier, governor of Milan under
Charles V, v, 49, 263, 264.
truce with the Sieur de Brissac, 135.
Goths (Gothi, Gotones, Gothones, &c.,
northern Germanic tribe) :
invasions of, 28, 6*0.
order that a church be spared, 130-1.
Totila, king of, 178.
Governors, 24, 53.
counts of first rank rated with, 38.
deputies of, 22.
forbidden to build ships, 210-11.
lieutenant, 25.
office of, 46-9.
purchase of residence by, 210.
purchase of property or acceptance of
gifts by, 208.
Governors, Provincial:
appointed by emperor, 42.
may issue safe-conducts, 251.
ordered to arrest soldiers who are
A.W.O.L., 18.
Gracchus, Tiberius Sempronius, See Sem-
pronius Gracchus, Tiberius.
Grain:
administration of Roman state granaries,
198.
free, 201-2.
importance of, to the army, 197.
laws regarding, 198-9.
'service ration', 203.
tax, 54.
tickets (tesserae), 202.
privilege of, ceases with death, 203-4.
restrictions on issuance and sale of,
2 3-
Grants (militiae\ rules governing negoti-
ability and transfer of, 204-6. See also
Service Rations.
Greaves, loss of, how punished, 236.
Greek correspondence, chief of, 35.
Greeks, 3, 7, 61,78, 85, 175.
Grosso, value of, 174.
Guardian, 180.
may make peace for a ward, 313.
soldier excused from duty as, 177.
soldier may not appoint for his son, 161.
Guevara, don Juan de, 258.
Guilds (collegia):
how penalty is imposed upon, 313.
testamentary rights in regard to Roman
soldiers, 184.
Guilt, proof of, 320.
Hadrian (Publius Aelius Hadrianus, b. A.D.
76, chosen Roman emperor, 117, d.
.
Aelian's treatise on warfare written for,
iv.
makes changes in provincial administra-
tion, 28.
orders bankrupts to be flogged, 267.
Hanani (fl. c. 930 B.C.), Hebrew prophet,
reproves Asa, 93.
Hand-shaking a sure evidence of peace, 334.
Hanging:
more disgraceful than death by sword,
i8 7 .
of men surrendered in war, 318.
punishment for desertion to enemy, 223.
punishment for treason, 234.
soldiers may not be condemned to death
by, 187.
Hannibal the Great (249-183? B.C.),
Carthaginian general, 194, 225, 231,
243-
and the philosopher, iv.
wrath of, 1 10.
Hanun (fl. c. loco B.C.), king of the
Ammonites, 92.
Hasdrubal (d. 207 B.C.), Carthaginian
general, brother of Hannibal the Great,
228.
Hasdrubal (d. 204 B.C.), Carthaginian
general, son of Gisco, 234.
Heathen, fear of justifies fortifying a
church, 156.
Heaven, war in, 3.
Heir:
actions for theft of inheritance, 331-2.
appointment of a substitute, in soldier's
will, 162-3.
courtesan and concubine cannot be
soldier's, 177.
eligibility of, under soldier's will, 172.
3 8o
General Index
Heir
of mother taken captive, 109.
peace between heirs of murdered man
and slayer, 312-13.
peace between son who is not heir and
father's murderer., 313-15.
responsibility of heirs of man who has
made peace, 312.
soldier amenable to common law in
performance of acts as an, 215.
when there is no legal, to whom soldiers
estate passes, 184.
Helen ('EXcvj], wife of Menelaos, whose
abduction by Paris was the cause of the
Trojan war), 78.
Helmet, loss of, how punished, 236.
Helvetians, (Helvetii, Celtic tribe of cen-
tral Europe),
invasions of the, 60.
refuse to give hostages to Caesar, 342.
Henna (Enna, ancient Sicilian city, site of
the present Castro Giovanni), 240.
Henry VIII (Tudor; b. 1491, acceded to
throne of England, 1509, d. 1547), name
of, omittedfrom Treaty of Crepy, 290.
Henry II (1518-1559), King of France:
party to Treaty of Cateau Cambresis,
280.
party to Truce of Vaucelles, 143.
Hercules ( f HpaK\7j$y a mythological hero),
tithes from spoil dedicated to, 97.
Herds, overseers of, 37.
Heretics :
debarred from military service, 17.
fear of, a justification for fortifying a
church, 156.
may not be heirs to soldiers, 207,
not covered by a safe-conduct, 260.
soldiers who are, lose passive testamentary
capacity, 215.
Hermits are protected in time of war by
canon law, 81.
Hernicians (Hernici, ancient people of
central Italy, inhabiting the upper
valley of the Trerus or Sacco), 107.
Herod Antipas (Tetrarch of Galilee from
4 B.C. to A.D. 39), keeps his oath and
puts righteous Man to death, 94,
Hirpinians (Hirpini, Samnite people of
Central Italy who inhabited the cen-
tral Apennines), 225, 231.
Historiographers in Roman civil service,
21.
Holy Roman Empire, 9, 10.
Homicide :
death as a result of wounds , received,
151-2.
in defensive war, 62.
peace between heirs of murdered man
and slayer, 312-13.
peace between son and father's murderer,
313-15.
soldier amenable to common law in case
of accidental, 215.
Homobonus :
argues case of sequestration of enemy
property, 285-6.
Honour:
and precedence in office-holding, 38-9.
soldier punished if he is careless of his
246.
Horn (musical instrument), types of, 24.
Horse and Foot :
counts of imperial, 39.
in consul's army, 43.
in praetor's army, 44.
Horses :
giving or selling of, to enemy, 241.
indemnity for death of, resulting from
wounds received in war, 151.
provision made for grazing soldiers*,
211-12.
recompense to soldiers for, killed in
service, 150.
right of postliminy applies to, 105.
Hostages :
discussed, 341-5 :
defined, outgrowth of law of nations,
women and girls may be given as,
purpose of, 341 ; loss of status of,
under Roman law, motive for giving,
most distinguished persons given as,
to whom given, 342; whether free
man may be given as, private
citizens (laymen), 343-4; clerics,
344; private persons may not give,
343 ; given by cities, 343-4; giving of,
against their will, 344-5.
status of, in just war, 10.
substitution of, to affect parole of prisoner
of war, 126.
Hostilities:
kpse of time between declaration of war
and beginning of, 79, 80.
Hostilius Mancinus, Gaius (consul in 137
B.C.), 79-
General Index
3 8i
Hungary (including Roman Pannonia),
108, 167.
mutiny of Roman army in, 173, 175,
1 80, suppressed by Drusus, 235.
treaty of king of, with Republic of Venice,
319.
Huns (Hunni; Chuni; people inhabiting,
during 4th-th centuries, territory
north and north-west of the Black
Sea), invasions of, 60.
Husband and Wife:
confiscation of dower of wife ofprimipilus
for her husband's debt, 30.
gifts from wife to husband, for military
purposes, 160.
"husband's right' and military service, 184.
husband takes precedence over all others,
even wife's father, 312.
liability of husband limited, 270.
prosecution of adulterer under 'husband's
right', 312.
restoration of dower, if wife is taken
captive, 109.
Illness, feigned, a crime, 239.
Illyricum (ancient country on the Adriatic
lately known as Dalmatia, the sea-coast
of Yugoslavia), 34, 37, 224.
Immunity:
does not hold in times of great need,
154-5-
from ills of war, 80-2.
of ecclesiastical property, 129, 130-1.
Imperial and Spanish army (under
Charles V):
deserters to and from, 226-7.
suffering caused to, by cold, at Metz,
244.
Imperium, by whom possessed, 28.
Imposts of St. George, 203.
Imprisonment :
beyond jurisdiction of governors, 49.
obligation of person justly suffering,
115-16.
punishment for failure to appear at roll-
call, 238.
what constitutes, 142.
Incestuous marriage, penalty inflicted on
soldiers for, 212.
Income, restitution of, enjoyed from
property held during war, 284,
Indemnity, limitations on, for losses arising
from wax, 149-53-
India, Porus of, 89.
Indians (American), rightly enslaved by
Spaniards, 85.
Indibilis (d. 205 B.C.), Spanish chieftain,
deserts Carthaginians for Scipio, 231.
Indulgence :
difference between sovereign's, and ac-
quittal by a judge, 281-2.
types of, and their effect described, 282-4.
Indutiae, not distinguished from treuga,
135-
Infantry:
heavy, 35.
how paid, 197.
minimum pay of, in Roman army, 196.
pay received by German, 174.
Infidels:
alliances of Christian rulers with, 92-4.
desirable that they be divided, 93.
Inheritance :
acquisition and administration of, held in
abeyance, 109.
effect of, upon right to make peace with
testator's murderer, 315.
from one brother to another, when both
are soldiers, under military kw, l6b-i.
of value of class-privilege, 204.
obligation of soldier who takes up an,
suit to recover, 331.
surrender of, regukted by definite pro-
cedure, 90.
theft of an, not yet taken up, and actions
to recover, 330-2.
validity of pact between soldiers regarding
inheriting from one another, 185,
Injunction, action begun upon, binding
over to keep the peace, in another juris-
diction, 265.
Injury:
action for, when not admissible, 308,
done to ecclesiastics, 316.
adultery is injury to one's self, 212.
appearance of soldier in case of, 215.
condonement of, by ward to guardian,
3*3-
delight in, condemned, 62.
desire to escape or avenge, a cause of war,
61.
done to a brother, 211-12.
done to an individual is done to his family
and household, 291.
done to state, redress of an, 316.
382
General Index
Injury (cant.).
extent of, to be taken into account, in
punishing vengeance, 306-7.
must be completed, in order to be done,
301.
unwarranted vengeance for slight, 305-6.
war to avenge, 8.
whether involves violence, 311.
whether permissible to injure person who
has been banished, after peace has been
made with him, 305.
Injustice, aggressive, 60.
Innocence of an off ending king's subjects,
6 4 .
Insanity. See Madness.
Insignia. See Regalia.
Instinct, natural, 65.
Insubordination of soldier to his general
punished, 237.
Insult:
calls for vengeance, 307,
whether guilty person may be turned
over to insulted one for punishment,
317.
Insurgents, II.
Interdict quod m aut clam y 330.
International Law. See Law of Nations.
Interpretation of terms of a safe-conduct,
252-3, 258.
Intimidation, a contravention of peace, 311.
Invasion, barbarian, 65.
Invasions of Roman Empire:
Gothic and barbarian, 28, 60.
Inventory of an inheritance falling to a
soldier, 178-9.
Isabella the Catholic (1451-1504), queen
of Castile and Leon, wife of Ferdinand
V of Aragon, patroness of Columbus,
8 S .
Israel ('Jacob*; a Semitic tribe; 'children of
Jacob', the Chosen People of the Old
Testament), Baasha, king of, 92.
Israelites, 116.
Italians :
frequent deserters in Belli's day, 226, 227.
enjoy privilege of surrender of estate, 271.
Italy, 9, 10, n, 17, 32, 37, 51, 60, 61, 85,
164, 187, 226, 261, 335.
Ivrea (town of Piedmont), punishment
urged for soldier who surrendered
citadel of, to French, 328.
Jason
. 369 B.C.), chief magistrate
of Thessaly, 374, B.C., tyrant of Pherae,
233.
Javelin troops, ante. See Ante javelin
troops.
Javelins, first, in Roman army, 29.
Jehoshaphat (c. 95o-c. 890 B.C.), king of
Judah, admonition of the prophet to,
93-
Jerusalem, 116.
Jews, 94.
divorce tolerated among, 335.
wanderings of, 60.
wars of kings of Assyria against, 61.
whether protected by a safe-conduct,
259-60.
John "the Baptist', Saint (c. 5 B.C.-A.D. 30),
last of the prophets, advice of, to
soldiers, 61-2, 200.
John 'Lackland' or 'Sansterre' (b. 1166,
acceded to throne of England, 1199, d.
1216), treaty of Galeton with Philip
II of France, 302.
John Frederick I, the Magnanimous (d.
1544), duke of Saxony, Charles V
imposes peace upon, 280.
Judah (one of twelve tribes into which
Israel was divided), kings of, 92.
Judges:
advice to ecclesiastical, 213.
Belli appointed a judge, v.
difference between sovereign's and judge's
powers, 281-2.
directions from emperor conveyed to,
by referendaries, 55.
governor acting as, 47-8.
granting of safe-conducts by, 254.
how to interpret law in a doubtful matter,
295 '.
of soldiers engaged in business, 213.
praetorian prefect has power to unseat, 32.
prefect of a legion is its special, 40.
procurator of emperor acting as, 53.
sale of property to satisfy debts to be at
discretion of, 269.
violations of warrants and safe-conducts
issued by, 265-6.
Judgement :
not to be passed by certain officers, 49.
regarding supplies for army, appeal from,
186.
Judicial procedure :
officers in Belli's time pay no attention to,
1 80.
General Index
3 8 3
Julian *the Apostate' (Flavius Claudius
Julianus, Roman emperor from 361
.363), 6 3 .
Julius (a Roman coin), value of, 174.
Julius II (Giuliano della Rovere, Pope from
1503 to 1513), 83.
Julius, Lucius (Lucius lullus), Roman
military tribune with, consular author-
ity, 397 B.C., restores captured property,
107.
Julius Caesar, Gaius (100-44 B.C.), Roman
general, dictator, and writer, 30, 45 .
and the AQobroges, 223.
on general's and lieutenant's commands,
237.
rewards some of his soldiers, 195.
Julius Frontinus, Sextus (c. A.D, 40-106),
Roman military writer, writes treatise
on warfare for Trajan, iv.
Junius, Marcus (fl. c. 216 B.C.), Roman
dictator, orders military enrolment of
_boys, 15.
Junius Brutus, Marcus (d. 77 B.C.), Roman
jurist, 330.
Junius Brutus, Marcus (80-36 B.C.), son of
preceding, one of the assassins of Caesar,
. x ?3-.
Jurisdiction :
acquisition on, 141.
action begun at Milan to enforce an
injunction granted at Asti, 265.
for issuance of safe-conducts, 251, 253-4.
lies where offence was committed, 213.
not established over adherents by act of
adherence, 291-2.
of city prefect, 33.
of praetorian prefect, 32.
of procurator of emperor, 53.
over a soldier engaged in business, 213.
proconsular, when not to be delegated,
/In-
justice :
of might and of cause, 59.
place where praetor may administer, 45.
war without, is brigandage, v, 59.
Justinian I Iovorwiav6$, 483-565), Em-
peror of the East, under whose direc-
tion and patronage Roman law was
codified, 53, 177,
amends law regarding marriage of soldiers,
179.
and governors of provinces, 49.
appoints Narses general, 17.
creates Prefect of Africa, 31.
forbids appointment of vicegerents in
certain cases, 40-1.
King:
defence by a, of a city surrendered to him
against a, allied with him, 304.
estranging a friendly, 241,
may not give away a state or part of
realm without consent of people, 302.
may not oppress outside peoples, 77.
of England, 90.
of the Romans, 90.
pensions granted by, 205.
service of a lord's vassal to, 69, 70.
should be defended, 62.
soldiers to render service to, 186.
whether single combat may be engaged
in by, 89-91.
Knights:
enjoy military privilege in regard to wills,
171.
'gilded', 190-1.
precedence of, in Roman practice, 38.
to administer justice in Egypt, 53.
Labourers, soldiers acting as, in public works,
43-
Ladislaus IV (or V), king of Hungary from
1440-1444, violates his peace with
Turks, 88.
Laity, unfavourable to clergy, 155.
Lands. See Property, real.
Lapse of time, effect of, upon postliminy,
where land is concerned, 104-5.
Latin rights, deserters who possessed, 224.
Latins (Latini, ancient Italian people,
inhabitants of Latium, q.v.), 7, 107.
Latium (country of the Latins, stretching
south of Rome, from the Tiber to the
Liris),6l.
Laurentines (inhabitants of Laurentum, an
ancient Latin town), 82.
Lavinia, a legendary heroine, daughter of
Latinus, king of Latium; wife of Aeneas:
subject of combat between Aeneas and
Turnus, 89.
Law:
duelling repugnant to, 334-6-
every law should be just, fair, and reason-
able, 335.
ignorance of, condoned in soldiers except
in criminal cases, 177-8.
General Index
Law: (cont.*).
methods of, for conferring dominium,
and surrendering inheritance, 90.
of Persians, vi.
treaties of peace, a matter of strict, 290,
301.
Law, Canon, 254.
forbids fighting in certain seasons, 82-3.
protects certain persons in time of war,
81.
Law, Civil, 283. See also Law, Roman:
possession under, 7.
right of postliminy and enslavement
under, 7.
Law, Common:
amenability of soldiers to, 213-15 :
in consent of minors to alienation of
property; renunciation of zjideicom-
missum, when engaged in business,
jurisdiction, and venue or locus, 213;
right to repel force by force operative
against soldiers in case of robbery,
military service no protection against
praescriptto, in partnerships, right of
recovery from soldiers, 214; by
soldiers, 214-15 ; for false witness, for
non-payment of taxes, in passage
beyond the empire in pursuit of
trade, as an heir, in accidental
homicide, in case of legacies to them-
selves written by them in others*
wills, in case of heresy, appearance in
case of injury received, in resump-
tion of a JideicommissuTrt, as regards
f atria potestas, becoming a soldier
does not permit change of venue,
215.
amendment of, by vicegerents, limited,
.4'
minors not permitted to mate will under,
177.
soldiers' wills under, 161-2.
superfluous to petition for what has been
granted by, 251.
suspension of, in cases involving indemnity
claims, 150, 151,
Law, Divine, vi.
permitted private war, 5.
public warfare allowed by, 335 .
retention of things captured in just war,
under, 298.
Law,Fetial:
and declaration of war, 78.
claims of justice under, must be observed,
94*
Law, Feudal (see also Fief), rights of succes-
sion protected by, 90.
Law of the Lombards :
daughter not permitted to settle feuds
under, 315.
duelling under, 335.
Law, Military:
inheritance under, 160-1.
minors not permitted to make a will
under, 177.
parental gifts to a soldier fall under, 160.
soldiers 3 wills under, 161-72.
See also Law, common; Military dis-
ability; Military privilege; Crimes;
Punishment; Rank; Ransom; Soldiers;
Wills and Testaments.
Law of Nations. See also War; International
Law:
acquisition based upon, 141 .
dealings which vary according to persons
and place, 99.
distinction between natural law and, 65.
giving and receiving of hostages an out-
growth of, 341.
immunity of ambassadors under, 81.
kings presumed to be waging war in
accordance with, 65.
lapse of law of war and, when war is over,
225.
nomadic tribes and, 60-1.
permitted private war, 5.
pledges under, 88.
public warfare an outgrowth of, 335, 341.
regulations of war to be observed under,
126-7.
resistance to a right under, 64.
retention of things captured in a just war,
under, 298.
right of postliminy and enslavement
based upon, 7, 10, 341.
status of enemy arose out of, 285.
stronghold captured by enemy not to be
reclaimed under, 299-300.
Turks and Moors observe old, 108.
violated by breaking of truce, 139.
Law, Natural:
distinction between law of nations and,
6 5 .
never deprives a person of property
because of crime, 283.
permitted private war, 5.
General Index
385
Law, Roman, 7.
agrarian laws, 85.
development of surrender of estate under,
_27I. ^
did not introduce war, or status of enemy,
285.
formulated by quaestor, 50.
Germans and Swiss do not use, 242.
hostages under, 342.
praetor had right to enact new, 45.
Law, Twelve Tables, 44.
ownership given wider meaning in Lex
Aquilia than in, 331.
Lawyers, excused from understanding
subtleties of law, 178.
Laziness, criminal, 239.
Leaders in Roman army, 29.
Leagues and Compacts to hold friends of
each as friends of all, 94.
Lease:
of land in provinces forbidden to soldiers,
211.
release of lessee from payment on account
of war, 152.
Leave of absence :
discussed, 251,
recorded, 22.
rules regarding, not well enforced in
Bellas day, 18,251.
to be sparingly granted, 1 8.
Legacy. See Wills and Testaments.
Legions, 22.
execution of, ordered by Senate, 235.
prefects of, 40.
two, assigned to consuls, 42-3.
Legnano, Giovanni de, treatise de duettis
promotes duelling, 335.
Lentulus Spinther, Publius Cornelius. See
Cornelius Lentulus Spinther, Publius.
Leonidas (AetowiSas, heroic king of Sparta
from 492 to 480 B.C.), 89.
Levites (descendants of Levi, assistants to
priests in Jewish temple), received
tithe from plunder, 97.
Levy of troops:
importance attached to; exemption from,
238.
in Roman empire, 1112, 15.
without authority, 241.
Lex Aquilia, 330.
gives ownership a wider meaning than do
Twelve Tables, 331.
Lex Cornelia (c. 80 B.C.), II, 255.
1569.64
Lex Falcidia (c. 40 B.C.) :
application of, to a soldier when no
inventory of inheritance is made, 178.
deductions under, 172.
Lex lulia de cessions bonorum^ affords relief
of surrender of estate, 271.
Lex lulia maiestatis, 187.
what crimes fall under, 240-1.
Lex Trebelliana (c. A.D. 62), 178.
deductions under, 172.
Leyva (or Leiva), Antonio de (c. 1480-
1536), Spanish and imperial general,
refuses to relinquish command when
ordered, 241.
Liability. See Responsibility.
Liability for debt, limited. See Limited
liability for debt.
Libellenses^ in Roman civil service, 21.
Licence, of soldiers in Piedmont, 84.
Lieutenant, proconsular jurisdiction not to
be delegated to, 43.
Life, imperilled in war, 60.
Light arms, in Roman army, 29.
Liguria (ancient Italian country, along
north coast of Tyrrhenian Sea from
borders of Gaul to Etruria), 77, 263.
Ligurians, 7.
Limited liability for debt :
defined, 271.
enjoyed by certain, persons, 270.
Litigation:
litigants barred from military service, 17.
peace not violated by, 301 ,
Loan:
profit made because of a, should be
divided with lender, 128.
made to an official is a bribe, 209.
Lombards (Langobardi, tribe of north cen-
tral Germans, originally Scandinavian,
settled in northern Italy (Lombardy)
in A.r>. 568) :
a cruel and barbarous nation, 17.
invasion of, 60.
Lombardy, 256.
Lord:
at whose expense a vassal shall serve in
war, 73-4.
desertion of, by a vassal in battle, 713;
in war, 72-3, 228.
fortification of vassaPs estate to be at
expense of his, 299.
implications of adherence to another,
292.
3 86
General Index
Lord: (conty.
liability of, of a castle for damage to traders
to whom he has promised safety, 273.
may not appoint a new, for a vassal, 302.
may not oppress outside peoples, 77.
obedience of a vassal to an unjust, 63,
6 4 .
obligation of a vassal to a, in war, 66-70.
of a castle may issue safe-conducts, 251.
profound respect owed to, by vassal, 311.
rights of, how affected by seizure of
subjects, 142,
should be defended, 62.
Lord, our, the Judge of warriors, 59.
Loss of arms, a military crime, 236.
Losses :
not the theft, but loss inflicts the injury,
3-
remission of, suffered by a ting's subjects,
296-7.
Lot (Hebrew patriarch, nephew of Abra-
ham, fl. c. 1900 B.C.), rescued by
Abraham and his allies, 93.
Louis XII (b. 1462, succeeded to throne of
France, 1498, d. 1515), Ludovico
Sforza loses Milan to, 228.
Lucanians (ancient people, inhabitants of
Lucania, in southern Italy), 7, 225,
231.
Lucanius, Quintus (fl. 55 B.C.), Roman hero,
29.
Lucca (city in Italy, capital of the prov.
of Lucca), 255-6, 284, 303.
Lucretius, Spurius (fl. 520? B.C.), 32.
Lucretius Tricipitinus, Lucius (Roman
senator; consul in 462 B.C.), restores
captured property, 107.
Lust of empire condemned, 62.
Lyons (Lngdunum), 259, 328.
Maccabees (family and descendants of
Judas Maccabaeus, who founded the
Asmonaean Hebrew dynasty, c. 180
B,C.), alliance of, with Romans, 93.
Macedon (17 Afa^eSovia, the country lying
to the north of Thessaly) :
Alexander III, the Great, of, 89.
Hngs of, 7.
[Macedonians, 61.
Madness, discussed, 47.
Madrutz, Christoph von (1512-1578),
cardinal, prince-bishop of Trent
(1539-1567): Belli served under, v.
Maecenas, Gaius Cilnius. See Cilnius
Maecenas, Gaius.
Magister equitttm, 31.
Magister qfficiorum, 23.
Magistracy, earliest Roman, 50.
Magistrate, 45:
acts of, not to be passed upon by a lower
official, 32.
general name for a vicegerent, 40.
jurisdiction of, in granting safe-conducts,
253-4-
knight's decision in Egypt ranks with
Roman, 53.
rank of, compared with city prefect's,
33-
what officer is a higher, 46.
Maintenance, sale of lands to supply, 268.
Mamercus, Aemilius. See Aemilius Mamer-
cus, M. 'Dictator'.
Alamre (or Mambre, LXX: Map/Spy, fl. c.
1900 B.C., Amoritish tribal patriarch),
an ally of Abraham, 93.
Mancinus, Gaius Hostilius. See Hostilius
Mancinus, Gaius.
Mancipium, derivation of, 122-3.
Mandonius (fl. c. 213 B.C.), Ilergetan chief,
brother of Indibilis, deserts Carthagin-
ians for Scipio, 231.
Manilius, Manius (consul in 149 B.C.),
Roman jurist, 330.
Maniple, in the Roman army, 29.
'Manlian Orders', 237.
origin of the expression, 236.
Manlius Capitolinus, Marcus (d. 381 B.C.),
Roman hero, rewarded for saving the
Capitol, 193,
Manlius Torquatus, Titus (d. 340 B.C.),
cavalry officer, son of Titus Manlius
Torquatus Imperiosus, slain by his
father's order, for disobedience, 236.
Manlius Torquatus Imperiosus, Titus (fl.
c. 350 B.C.), Roman dictator, rewarded
for valour, 193.
Mantua (city in Italy, capital of the prov.
of Mantua), 300.
Manumission:
by a governor, 47.
whether effected by election of a slave to
praetorship, 45.
Marcellus, Marcus Claudius. See Claudius
Marcellus, Marcus.
Marcellus (coin), value of, 174.
Marchetus (a mark: a coin), value of, 173-5.
General Index
387
Marcius, Numa (fl. c. 650? B.C.), said to
have been city prefect, 32.
Marius, Caius (157-86 B.C.), Roman general,
leader of the democratic party, one of
the principals engaged in the Civil
War), 81.
Mark Antony. See Antonius, Marcus.
Marquis, 41.
Martiano, Count Bergaminus de, 95-6.
Martin IV (Simon de Brie, Pope from 1281-
1285), allows combat between Peter of
Aragon and Charles of Anjou, 90.
Masinissa (c. 25o-c. 153 B.C.), king of
Numidia, transfers his allegiance from
Carthage to Rome, 229-30.
Massacre of the leaders of the mutiny in
Germany, 235.
Masserana, the Marquis of:
arrested in spite of safe-conduct, 256.
Belli's opinion in case of, 257-9.
defence of, 257.
Master of offices, duties of, 35.
Master of troops, office of, 34.
Masters:
and freedmen, cases involving, 44,
of slaves, 33.
whether a broil between their servants
breaks the peace between, 292-3.
Matho (or Mathos, Md9a>$, a Libyan leader
in revolt against Carthage after the
Second Punic War), 10.
Matrimony, military privilege in regard to,
179.
Maximinian (Marcus Aurelius Valerius
Maximinianus, Roman emperor from
286 to 305, and from 306 to 3lo),makes
changes in provincial administration^ 8.
Maximinus Thrax (Gaius lulius Verus
Maximinus, b. 173, chosen Roman
emperor, 235, d. 238), 15.
Measurers, 35.
Mede, Araspes a, 234.
Medes (the inhabitants of Media, ij MySla,
ancient country of considerable extent,
situated to the south of the Caspian
Sea),6i.
Meherdates (fl. c. A.D. 49), Parthian Prince,
grandson of Phraates IV, hostage of
Romans, 342.
Mettofroximi in the Roman civil service, 21,
22.
Memoranda, bureau, and chief of, 35.
Men, old, excused from military service, 15.
Mendicant orders (Franciscans and Domini-
cans), not exempt from taxation, 211.
Menelaos (MevcAaosv JkfeWAccosr, or
MeveXas, Homeric king of Sparta,
husband of Helen), 78.
Mensores, 24,
Mercenaries, 107:
bound not to desert, 228.
moral duty of, regarding justice of a war,
6 *'
responsibility of, for losses inflicted on
the people, 298.
Alercy, whether it is to be shown a captured
enemy commander, 91 .
Mesopotamia, 41.
Messengers identified with statores, 23,
MetatOTy duties of, 24.
Metz, 244.
Alight, the justice of, 59.
Milan, 112, 150, 174, 175, 189, 280, 300,
3. 21 '
action begun at, to enforce an injunction
granted at Asti, 265.
airs affected by tradespeople of, 32.
French spy at, 234.
jurisdiction of chief justice of, 33.
lost to Ludovico Sforza, 228.
Milan, Duchy of,
French distribute captured lands of, 105.
military and civil administration of,
under Charles V, 49.
Milan, Dukes of, 252, 300.
right of, to declare war, 6.
Military disability:
discussed, 207-12 :
who may not be named as heir by a
soldier, 207-8; in acquiring land,
208; governors forbidden to build
houses, ships, 210-11; soldiers may
not lease land, nor take their wives
with them into provinces, nor marry
there, nor make gifts to mistresses or
courtesans, 211; nor graze horses in
certain fields, 211-12; nor act as
deputies even for parents or wife,
nor marry incestuously, under strict
penalty, nor report derelictions to
the fiscus, 212.
Military discipline, as maintained by certain
Roman generals, 244-5.
Military privilege:
absolute control over peculium castrense,
161.
3 88
General Index
Military privilege : (c ont.)
appeal from judgement regarding
supplies, 1 86.
application of, to soldiers of Belli's time,
188-91.
certain officers may make contracts for
their companies, 185.
classification as a minor in certain cases,
1 86.
conspiracy to kill certain soldiers is
treason, 184.
culprits not to be executed without con-
sulting emperor, 1 80.
discussed, 159-73; 176-91,
dispossession of property without full
transfer to creditors, 182.
effect of, upon soldiers* wills. See Wills
and Testaments,
exemption from transportation service
and entertainment, 185.
extended to civil service, in regard to
peculzum castrense, 161.
extends to pupillary substitution, but
not to appointment of a guardian, 161.
extension of period to bring charges
against wife, under 'husband's right',
184.
fines not to be beyond culprit's resources,
180.
freedom from obligation to give testi-
mony, 1 8 6.
gifts for military purposes, 160; excep-
tion in case o silentiarii, 207.
ignorance of law condoned except in
criminal matters, 177, 178.
inheritance, 160-1.
in regard to matrimony, 179.
interposition of peremptory exception,
i8 5 .
not to be extended to child officers,
177.
minor's right of appeal, 180.
of minors, 182,
prescription, 180.
property not confiscated though taxes be
not paid, 179, 215.
purchase, 185.
restoration in integrum against a prae-
scriftio kngi Umporis, 182.
restoration in integrum against sale of
property by creditors, 182.
restriction of engines of warfare, 186.
seizure of animals for transportation, 186.
1 soldier not liable for testator's debts
; beyond assets of estate, 178.
j soldiers excused from acting as guardians,
I I77 ' I78 '.
time spent in capitivity counts as time in
service, 181.
sentence against soldier does not involve
his pay, 184.
pay for time spent in captivity, 181.
to whom estates pass when there are no
legal heirs, 184.
torture and certain punishments, 187,
i8 9 .
trial by a special judge, 182-3.
trial of prisoners of rank, or formerly of
rank, by emperor, 183-4.
validity of pact regarding soldiers* in-
heriting from one another, 185.
when overriden by privilege of nobility,
i8 5 .
wills not subject to challenge under, 185.
Military service (Roman) :
division of, 19 seqq.
evasion of, 221.
poor not to bear entire brunt of, 47.
prevention of, 221.
Militia. See Service ration; Grants.
Mines:
counts of the, 36.
soldiers may not be sentenced to work in,
i8 7 .
Minister a vicegerent, 41.
Ministeriani, 23, 24.
Minors:
soldiers classed as, for certain purposes,
186.
special privileges of, in military service,
182.
Mint, directors of the, 37.
Minucius, Marcus (Magister equitum in
217 B.C.), 194.
Misappropriation of funds, 223.
Mistress, validity of gifts from a soldier to
his, 189, 211, 214-15.
Mithridates VI, Eupator, the Great (120-
63 B.C.), king of Pontus, wars of
Romans with, 7, n, 61.
Moat, entering a fortification across, 241.
Modestus, Roman tactician, writes treatise
on warfare for Emperor Tacitus, iv*
Moericus (fl. 3rd century B.C.), betrayer of
Nasus, rewarded, 229,.
Mohammedans, 'members of Satan', 93.
General Index
389
Monasteries, an injury done to a monk is
done to his monastery, 316. See also
Property, ecclesiastical.
Mondragone, duke of, v.
Money, 22.
'mail money 5 described, 195,
supplied to Roman army by allies and
conquered enemies, 197.
supplying enemy with, 241.
values of coins. See Exchange,
weight of denarius, 196.
Monks. See Ecclesiastics, monks.
Montferrat (marquisate, later duchy in
Piedmont. Passed to Mantua in 1536),
77-
Moors (Mauri, race of North Africans), 80.
observe old law of nations, 108.
Mordecai (Jew, fl. c. 450 B.C., cousin and
foster-father of Esther), 22.
Mortgage, See Property, mortgaged.
Motives for warfare, not to be pryed into
by vassals and subjects, 65.
Mucius Scaevola, Quintus (d. 82 B.C.),
Roman jurist, 331.
Municipal officers, 184.
Murder. See Homicide.
Murgantia (town in Sicily, frequently writ-
ten Morgantia), given to Moericus,
betrayer of Syracuse, 229.
Mustering out, demanded by mutineers in
Pannonia, 173.
Mutilation, to prevent military service, 221.
Mutiny:
crime, 235-6.
of Roman soldiers in Pannonia, 173, 175,
180,235.
Muttines (fl. 3rd century B.C.), an African,
rewarded with citizenship, 229.
Nabal, David violates his oath with regard
to, 94.
Naples, kingdom of, 183.
captured lands of, distributed by French,
105.
Naples and Sicily, kingdom of, 90.
Narses (Napcrijs, Roman general (Eastern
empire), Exarch of Italy, d. 558), ap-
pointed by Justinian 1, 17.
Nasus (fi vijaos, the island: occasional name
for the island of Ortygia, oldest part
of city of Syracuse), 229.
Natural Law. See Law, natural.
Nature and defence, 61.
Nepete (ancient town in southern Etruria,
about 30 miles from Rome, site of
modern Nepi), punishment exacted
for surrender of, 232.
Nero (Lucius Domitius Claudius Drusus
Nero, b. A.D. 37, chosen Roman
emperor, 54, d. 68), 244.
Neutrals :
territory of, immune from plunder,
98.
validity of capture of an enemy in
territory of, 98-9.
Nice, Truce of. See Truce of Nice.
Niger, Gaius Pescennius. See Pescennius
Niger, Gaius.
Night prefects. See Watch.
Night Watch. See Watch.
Nile (a river in Africa), 245.
Nobles:
include their suites under their safe-
conducts, 263.
may not be sentenced to death by hang-
ing, 187.
persons holding commissions may sub-
stitute nobles for themselves, 325,
326.
punishment of, 104.
two meanings of word noble, 295.
Non-combatants :
may not take up arms, 120.
war against, and their property, 84,
Non-subjects:
desertion of, 228-9.
granting of safe-conducts to, 254.
Non-vassal, desertion of, 228.
Numantia (capital of the Arevaci in
Hispania Tarraconensis, site marked
by ruins at Puente de Don Guarray),
79- ..
Numerarii, 22.
Numeri. See Records and Accounts.
Numidians (ancient inhabitants of central
North Africa, now known as Algeria),
229.
Nuremberg Pandects, 165.
Oath:
binding upon captives, 123.
debt secured by, not covered by a safe-
conduct, 272.
difference between David's and Herod's,
94-
given to the enemy must be kept, 88.
39
General Index
Oath: (cont.}
military, 171-2.
essential before fighting can be en-
gaged in, 1 20.
takes precedence of a later promise,
127.
must be kept, by law and usage of war,
126.
of allegiance, effect of, upon possession,
140.
of the soldiery in Roman times, 12.
out of harmony with the practice of war
not valid, 127.
when not binding, 126.
Obedience:
to orders, effect of, 141.
to ruler's call to arms, discussed, 63-6.
Obligation:
does not require impossibilities, 327.
of vassal to his lord in war, 66-70.
to state stronger than to personal word,
127.
Obscene language, to another's wife, con-
stitutes an injury, 311.
Offences, special court to try military
offences, 182-3.
Officers:
failure of soldiers to defend, 239.
liability of public, limited, 270.
may not employ soldiers on their private
business, 18.
responsibility of, for unlawful loss in-
flicted by their men, 246.
Offices:
duration of certain, 210.
master of. See Master of offices,
rules governing purchase, sale, and trans-
fer of, described, 206-7.
Officials:
loans and gifts to, 209.
military and civil* 49.
with and without jurisdiction, 208.
Oil, 199.
Old men excused from military service,
. I5 '
Opinatores:
collectors, 27.
victuallers of the Roman army, 26.
Optiones, 26, 27.
Order, maintenance of, by governor, 47.
Orderlies, 23.
Orient (Eastern Roman Empire), 34.
Count of the, 37.
Osdroena (Osrhoene, small district in north-
west part of Mesopotamia), 41.
Ostrogoths (barbarian horde originating
probably near north shore of Black Sea),
17-
Othman (Othman ibn 'Affan, c. 574-656),
3rd Mohammedan caliph, establishes
an empire, 61.
Our Lord as the Judge of warriors, 59.
Outlawry:
of public enemies, by Pope or emperor, 8 3 .
outlaws may be killed by private persons,
83.
safety of outlaws in neutral territory, 98.
Overlord, 90.
common, should be appealed to for re-
dress, 10.
consent of, required before making war,
' 7-8-
, defence of his vassals against aggressors, 8.
1 enemy's, should be appealed to for re-
dress, 8.
Overseers, 37, 198.
Pact. See Treaty or Treaties.
| Padua (city in Italy, capital of prov. of
Padua), 150.
Pagans must observe justice under fetial
law, 94.
Palace, count of the, 37.
Palace Guards:
classification, rank, and duties of, 20, 21.
counts of the, 37.
in charge of counts of imperial horse and
foot, 39.
frimuerii and counts answerable to
directors of, 14.
Palatini, of the fiscus, and of the emperor's
personal accounts, 23.
Palestine (Palaestina, /ZoAaurrwo?, com-
mon name of the Holy Land), 60.
Pallas (son of Evander the king of Arcadia,
ally of Aeneas), slaughter of captives at
the funeral of, 86.
Pannonia. ?* Hungary.
Papirius Cursor, Lucius (fl. c. 315 B.C.),
Roman general, dictator:
rewards centurions, 193.
tries Fabius Maximus for disobedience of
orders, 236, 237.
Pardon:
legal effect of, 112.
when an encouragement to sin, 245.
General Index
39 1
Parents :
cases between children and, 44.
legal status of gifts from, to children, 160.
limited responsibility of, for debts, 270.
soldiers forbidden to act as deputies for,
212.
Paris (capital of France), court of, 206.
Parleying is half surrender, 328.
Parma (town in Italy), 258, 285.
Parole of a prisoner of war.
during battle, 122.
is not release, 126, 127.
validity of second capture after, 123,
Parpagliola (a coin), value of, 174.
Parthia (17 UapdvcLia, 17 IlapOvTjvtf,
IlapQia, originally a small district of
western Asia, later the whole of that
territory, especially under the Aisaci-
dae), 171.
Parthians, 244, 341.
Participation in an act as leader or follower
determines extent of liability, 293.
Partnership :
effect, when one party takes another
party, 148.
for sharing of ransom, 129.
liability of partners, 123; limited, 270.
unseasonable dissolution of, 73.
validity of, among brigands or soldiers for
improper ends, 147.
Passport. See also Safe-conduct:
the case of Germanicus Savorgnano,
263-4.
Pastor, injury done to, is done to his church,
3 i6.
Pastures, commissioners of, 37.
Paternus, writes treatise on warfare for
Augustus, iv.
P atria potistas:
right of, now impaired, 104.
soldiers remain in the power of their
fathers, 215.
Patrons :
cases involving freedmen and, 43.
liability of, 270.
Pay of soldiers:
arrears in, no excuse for desertion by
non-subjects, 228-9.
discussed, 195-7.
how provided for, 154.
not involved in sentence passed against
them, 184.
of a Roman soldier, 175.
their usual reward, 195.
whether due for time spent in captivity,
181.
Peace:
apart from justice, there is no, 59,
assured by preparedness for war, 279.
attained only after war, 3.
called virtue and sentiment of love, 278.
consular powers in time of, 42.
defined, 279-80.
effect of, on restoration of income derived
from property held during war, 284.
imposed by conqueror, 279,
not broken by one's being in a position to
break it, 301.
objective of war, 59, 278,
ought to be real and enduring, 279.
penalty for breaking, how often incurred,
329-
power of sovereign over vassals in interests
of, 302.
private, making of, 329.
restoration of property with return of,
280-1, 284.
return from exile under an amnesty, 280.
tokens of private, 333-4.
truce, its relation to, 136-7.
war preferable to a doubtful, 279.
whether a broil between their servants
breaks, between masters, 292-3.
whether adopting a son after disin-
heritance and emancipation is a sign of,
336-7.
whether all concomitants of war are done
away with by making of, 280.
whether mutual citizenship rights re-
stored by, 284.
whether parties may b e forced to make, 3 1 8 .
Peace, Treaties and Compacts:
adultery, a violation of, 305, 307-8, 312.
between heirs of a murdered man and
slayer, 312-13.
between two towns applies only to
citizens who were adults at time treaty
was made, 309-10.
biad successor of maker, 302,
broken by unwarranted vengeance for
slight injury, 305-6.
case concerning amnesty under, 294-5.
cession differs from, 302.
contracting parties to be regarded as
corporate bodies, 313.
covers all causes of war, 301.
39 2
General Index
Peace, Treaties and Compacts (font.}.
effect of lack of ratification of peace pact
upon acts committed prior to ratifica-
tion, but after signing, 308.
effect of state's withdrawal from territory-
tinder, upon private persons, 319.
effect of, upon right to reclaim property,
334-
ended by death, 329.
essence of, 305.
for whom person who makes, should bind
himself, 291.
guardian may make, for a ward, 3 I 3-
hostages given to secure, 341.
how contravened, 311-12.
how not violated, 301.
how vengeance is to be weighed in de-
termining who violated peace, 3^~7-
injury to one person included in peace-
pact is an injury to all, 329-30.
kinds of, described, 301.
liability of heirs of man who has made,
312.
liability to penalty of allies of breaker of
peace-pact, 309, 312.
matter of strict law, 290, 301,
negotiations for, between insulted and
guilty person, 317.
new circumstance excuses breach of, 310.
no penalty incurred by first breaker of, if
other parties also break, 310.
not destroyed by dereliction of one party,
309.
peace apart from, 279.
powers of civil authorities to adjust in jury
done to state, 316.
powers of ecclesiastics to adjust injury
done to one of their members, 316.
powers of natural children to adjust
injury done to their parents, 316-17.
remission of payment for losses suffered
by subjects made by sovereign without
people's consent, in, 296.
should be without loopholes, 302.
status of co-makers, if member of same
party breaks, 332.
surrender of strongholds under, 302.
terms of, should be carefully read, 281.
theft, as a violation of, 307-8.
to whose advantage the penalty for
breaking the peace will be enforced,
types of, reviewed by Livy, 279-80.
unity, as respects all contracting parties,
33-
violence to truce, same as violence to,
136.
whether attack upon brother of one of
contracting parties breaks, 294.
whether commanding general may make,
296.
whether father may make, for son, 3 1 5-16.
whether peace made between chief
sponsors of war includes adherents of
each, 290-2.
whether peace treaty covers those who
later become subject to one of makers,
303.
whether son may make, for father, 316.
whether son who is not heir, may make,
with father's murderer, 313-15*
whether treaty guaranteed by penalty-
covers town which later gives allegi-
ance, 304.
whether violated by new occasion of war,
34-5-
who may be injured in spite of peace
made with him, 305.
who will bring action for penalty attached
to breaking, 312.
Peculium castrense (military acquisition) ;
absolute control of soldier over, 161.
and succession to wife's estate, 160.
parental gifts to soldier become, 160,
soldier may cut off son from succession to
his, 161.
Pedro III of Aragon. See Peter III of
Aragon.
Penalty:
for breaking a peace-pact, rules governing
application of, 309-10.
suit to recover object of contract may be
brought, even though penalty for
breach of contract be forfeited, 310-1 1.
Pension granted to Belli by Philip II, 202.
Percennius (d. 8 B.C.), a common soldier,
and mutineer, punishment of, by
Drusus, 235,
Permission to do something implies licence
to do all necessary preliminaries, 255,
256.
Persians, 7, 6l.
king of, assisted by Charles V, against
Turks, 93.
law of, vi.
Personal Service in Feudal law, 67.
General Index
393
Persons escaped from the Enemy. See
Escaped Prisoners of War.
Perugians :
peace between, and Apostolic See (1371),
281.
Pescara, Marquis de, v.
Pescennius Niger, Gaius (d. A.D. 194),
Roman general, governor of Syria,
punishes soldiers for theft, 245.
Petelians (inhabitants of ancient city of
Petelia, in Bruttium, site of present
town of Strongoli), aid asked of Rome ;
by the, 232.
Peter III, the Great (1236-1285), King of
Aragon, 91, combat arranged with
Charles of Anjou, 90.
Petitions :
bureau of, 35.
formulated by quaestor, 50.
Pharsalus (city of Thessaly, chiefly remem-
bered as site of battle between Caesar
and Pompey), 233.
Philip II (Augustus, b. 1165, succeeded to
crown of France 1 1 80, d. 1223), treaty
of Galeton with King John of England,
302.
Philip II (King of Spain) \ pr < T-rt0 ,*
PhmpI (Kingof England)) ^5^>98: 256.
dedication of Belli's treatise to, iv.
grants a pension to Belli, 202.
party to treaty of Cateau Cambresis,
280.
party to truce of Vaucelles, 143.
treaties of, with king of France, 319.
Philistines (ancient Asiatic tribe of Palestine
living along coast allotted to tribe of
Judah), 92.
fear David will turn upon them, 93.
Phraates (Parthian prince, son of Phraates
IV, q.v.), held as hostage by Romans,
342.
Phraates IV (Arsaces XV; king of Parthia
from 36 B.C. to A.D. 4), 342.
Physicians :
in camp enjoy military privilege as re-
gards prescription, 180.
of imperial court in military service, 25-6.
physicians-in-chief, 38.
Piccinini, a powerful Italian family, 261.
Piedmont (district in northern Italy), 77,
140,174,261,263.
carelessness of soldiers of, in Belli's day,
in regard to allegiance, 231-2.
1569*64 3 E
cities of, retained by French under treaty
of Cateau Cambresis, 280.
licence and rapacity of soldiers in, 84.
Pilgrims protected in war time by canon
law, 81.
Pinarius, Lucius (Roman governor of
Henna, 214 B.C.), massacre of the
civilians, 240.
Pinerolo (town in Piedmont), retained by
French under treaty of Cateau Cam-
bresis, 280.
Pirates :
common enemy of every one, 88.
no declaration of war necessary against,
83.
Pisa, 255-6, 258, 284, 317.
truce of, with Genoa, 323.
Plato (nXdrcw, 429-347 B.C.), Greek
philosopher, 228, 230.
Pleaders at law, 43.
provided for unfortunates, 44.
Pledges not to be viokted, 88.
Plunder:
aiding enemy to plunder friendly country,
241.
bandits lie in wait not to commit injury,
but for plunder, 308.
Bardulis noted for fair division of, 147.
contrary to divine law, 297.
going to war for sake of, 62, 212.
immovables, property of the emperor,
97-
neutral territory immune from, 98.
of allied towns recaptured from enemy,
deplored, 232.
of private houses, and of ecclesiastical
property, 130-1.
partnership for division of, 148.
turned over to general for division, 96-7,
194.
when it comes into the control of the
captors, 1 06.
when just, 131.
Po (a river in Italy), 300.
Poison may not be used against enemy,
89.
Police. See also Roundsmen:
duties of the secret, 24.
Poll-tax, 1 6.
Polydamas yioAuSa^a?, fl. 4th century
B.C-), Thessalian general, 233.
Pornpey (Gnaeus Pompeius Magnus, 106-
48 B.C.), Roman general, 30, 153, 223.
394
General Index
Pontic District (Pontus, JToVros-, large
tract in Asia Minor, south of Black
Sea Pontus Euxinus), 38.
counts of the, 37.
Poor, not to be made to bear the entire
burden of military service, 47.
Pope. See also Apostolic See: 9, 10, 21, 88,
"5, 123.
appoints vicegerents, 40.
can compel sovereigns to make peace, 318.
has right to declare war, 6.
Julius II, 83.
-Martin IV, 90.
may depose a cardinal, 41.
may give a member of clergy as hostage,
344-
orders forts returned to Templars, 327.
outlaws public enemies, 83.
regulates wills of some cardinals, 161.
Popilius Laenas, Marcus (fl, c. 175 B.C.),
Roman statesman, 120.
Porcius Cato, Marcus 'Censorinus' (234-
149 B.C.), Roman statesman, 120.
Porsena (fl. c. 500 B.C., prince of Clusium,
in Etruria), Romans surrender maidens
as hostages to, 341.
Portuguese, and newly discovered peoples,
286.
Portus I this. See Calais.
Porus (d. 317 B.C.), a king of India, combat
of, with Alexander, 89.
Possession :
not acquired by oath of allegiance, 141.
right of, as regards law of nations and
civil law, 7.
Possessions, civil (in opposition to peculium
castrense, q.v.)? under a soldier's will,
164-8.
Postliminy :
applies to all humans, 103-4.
arms do not return by, 105.
captured person passes out of control of
captor through return by, 123.
defined, 103.
discussed, 103-12.
effect of lapse of time, where land is
concerned, 105.
effect of, on children born in captivity,
108, on codicils of a captive, in, on
pupillary testaments, 110-11, on re-
capture, I II-I2, on sale of property in
power of enemy, no, on successions
and inheritance, 108-9.
enjoyed both in time of peace and war by
captives of war, 105.
in civil dissentions, 116.
in civil wars, 10.
in rebellions, 9.
laws of, apply in wars between Christians
and Turks or Moors, 118, of little
application among Christians, 115.
loss of, a punishment for desertion, 225-6.
outgrowth of law of nations, 341.
pertains to lands, 104-5.
right of, based on law of nations, 7, 103.
ships of war subject to, 105.
under civil law, 7.
when it comes into operation, 106-7.
Postumius, Spurius (fl. 325 B.C.), Roman
statesman, 78, 79.
Postumius Regillensis, Aulus (military
tribune with consular authority, 397
B.C.), restores captured property, 107.
Postumius Tubertus, Aulus (Dictator, 431
B.C.):
order of, in regard to exemptions in time
of levy, 238.
restoration of plunder by, 107.
Potitus, Gaius Valerius. See Valerius
Potitus, Gaius.
Praefecti laborum, 33.
Praeneste (one of the most ancient and
powerful of Latin cities, site of present
Italian city of Palestrina), soldiers
from, rewarded, 194.
Praepositi laborum in the Roman civil
service, 21.
Praepositus, 33.
Praescriftio kngi temporis. See Prescription,
legal.
Praesidium, meaning of, 225-6.
Praetor, 49, 53.
of city, may issue safe-conducts, 251.
office of, described, 44.
possesses military imperium, 28.
regalia of, 49.
Prebends are not transferable, 206.
Precedence in Roman practice, 38-9.
Prefect:
city, 24, 32-3, 140.
imperial, 46.
of a legion, 40.
of artisans, 32.
of Egypt, 46.
of public works, 32.
of the camp, 32.
General Index
395
of the treasury, 33, 37, 51, 53.
of the watch ('night prefects'), 32, 46.
praefectilaborum, 33.
praetorian, 24, 31-2, 38, 40.
provincial, may issue safe-conducts, 251.
purchase of property, or acceptance of
gifts by, 208.
rank of, compared with that of master of
foot and horse, 34.
Prelates. See Ecclesiastics, prelates.
Preparedness for war assures peace, 279.
Prescription, legal:
and military privilege, 180, 182.
in property captured in an unjust war, 60.
Presents:
governor should be chary of accepting, 48.
proconsul should exercise discretion in
regard to, 43.
same as solacia, 198.
President of a province may issue safe-
conducts, 251.
Price, fair, an evidence of good faith, 209.
Price-fixing, right of, transferable, 118.
Priests. See Ecclesiastics, priests,
Primuerii: 21, 24, 25, 179.
duties, privileges and rank of, 13, 14.
origin of the name of, 14*
Primiplus denned, 29, 30, 31.
Prince:
ought not to attack all persons indis-
criminately, v.
whether single combat may be engaged
in by a, 89.
Principal:
responsibility for an action determined by
whether one is principal or follower,
293.
responsibility of, for losses sustained by
followers, 293-4.
same person cannot be both principal and
accessory, 332.
Prisoner, liability of heir of, if death occurs
before payment on pledge, 1 10.
Prisoners of War. See also Captives:
custody of, may affect military privilege,
185,
dispute between captor and comrade
over, 116-17.
freed under promise to return, obligation
of, 125-7.
rated as things, 98.
Regulus effects exchange of, 126.
transfer and sale of, 117-18.
treatment of, 86.
whether one may be taken prisoner of
war the second time, 121-4.
Private person, given as a hostage in a
private cause, 342, 343.
Privernum (ancient city of the Volscians,
later of Latium; near the modern
village of Piperno, known as Piperno
Vecchio), answer of the man of, in the
Roman Senate, 279.
Privilege :
class. See Class privilege.
granting of, 190-1.
military. See Military Privilege.
of court, when it does not avail, 213.
of nobility, when it overrides military
privilege, 185.
Privy council, counts of, 37.
Privy purse, chief secretary of department
'of, 37-
Process, criminal, 53.
Proconsul, 49.
higher magistrates, 46.
office and powers of, described, 43-4.
possesses military imperium, 28.
rank of, 37.
Procopius (IIpoKomos, c. 495-- 5^Sh
Roman historian of Eastern empire
secretary to Belisarius, 17.
Procurator:
cases to be referred to, 43.
of emperor, 52-5.
offiscus, 52,210.
Promise. See also Oath, Parole, Pledges :^
incurring unjust danger to one's civil
rights and life, not binding, 126.
made to brigands, not binding, 88,
125-6.
to defend another, not an obligation for
lawless ends, 94.
to one's loss, should be kept, 127.
to return, binds a captive when released
by enemy, 126-7.
under oath, to pay ransom, 256-8*
Property:
alienated because of judicial sentence,
recovery of, 284.
alienation of, by consent of soldier who
is a minor, under common law, 213.
assignments of, in soldiers' wills, 164-7,
168.
dispossession of, 54; without full transfer
to creditors, 181.
39^
General Index
Property: (cont.)
held during war, restoration of income
enjoyed from, 284.
making of peace does not cancel right to
reclaim, 334.
responsibility for borrowed, 293-4.
safe-conduct covering one's own, does not
cover another's, 272.
Property Captured in War:
belongs to captors, 85, 95.
French wrongfully distribute, 98*
from enemy, may be retained by all law,
298.
immovable, belongs to emperor, 97.
restoration of, 107-8; under treaty
stipulation, 112, after peace has been
declared, 280.
turned over to general for division, 96-7.
when it comes into control of captors,
105.
Property, Confiscation of:
for failure to mate declaration, or pay
tax, soldier exempt from, 179.
of private citizen in interest of public
welfare, 345.
partial, as punishment, 221.
penalty for incestuous marriage, 212.
Property, Ecclesiastical:
immunity of, 130-1.
injury done to a priest is done to his
church, 316.
invasion of a monastery, 129.
when it is permissable to fortify a church,
155-6, 299.
Property, Mortgaged:
mortgage of future acquisitions, 324.
sale of, 54.
Property, Real:
lands enjoy right to postliminy, 104-5.
soldier may not acquire, in provinces,
208; nor lease, 211.
Property, sale of:
emperor's, 54.
in possession of enemy, effect of post-
liminy upon, no.
lands should not be sold to supply
maintenance, 268.
of uncertain status, mortgaged, given as
security, perishable, &c., 54.
to satisfy delinquent taxes, debt, &c., 54.
Pf&ptaetors possess military imperium, 28.
Protection of the weaker against the
stronger, 47.
ProtectoTes:
classification, rank, and duties of, 20, 21.
letter of St. Jerome to one of the, 21.
of armourers, 25.
Provence (portion of France on the Medi-
terranean, between the Rhone and
Nice), 90.
Provinces :
assigned to what officers, 28, 37, 43.
governors have authority only in their
own, 47.
in which, soldiers and certain officers may
not acquire land, 208.
presidents or governors of, may issue safe-
conducts, 251.
quaestors cast lots for, 51.
rulers of, may be called governors, 46.
Provincials :
afforded the relief granted by the Lex
lulia de cessione bonorum, 271.
may resist force with force, 120.
not to be chosen Roman praetors, 46.
not to be overburdened with taxes to
pay for a war, 76.
protected by laws regarding gifts to
officials, 209.
protected from procurators, 55.
safe-conducts granted to, 252.
soldiers may not demand supplies of, 199.
when animals belonging to, may be seized,
186.
whether they may fight, and take soldiers
captive, 119-20.
whether they may visit territory of
enemy, 121.
Provocation, newly arisen, excuses illegal
retaliation, 139.
Provost of imperial household, 34.
Proximi in Roman civil service, 21, 22.
Proxy discussed, 208.
Public enemies :
may be outlawed by Pope or emperor, 83.
pirates, 88.
prisoners of, released on parole, not bound
by their pledge, 125-6.
safe-conduct issued to, 266.
Public works:
prefect of, 33.
soldiers acting as labourers in, 43.
supervised by proconsul, 43,
Punic Wars:
First, 126.
Second, 10-11, 108, 229, 232.
General Index
397
Punishment:
all, discretionary with emperor, 245-6,
325-
bondsmen not liable to corporal, 328.
commanding general subject to, 246.
comparative severity of, for freemen and
Romans, 224.
discretionary punishment of flagrant
crime, 48.
exacted before trial, injustice of, 322-3.
extent to which surrendered person may
be punished, 317-18.
fines levied on soldiers not to be greater
than their resources, 180.
for aiding enemy to plunder friendly
country, 241.
for allowing enemy to devastate country,
328.
for allowing prisoner to escape, 242.
for armed assault upon another soldier,
241-2.
for a slave enrolling, 242.
for assault upon an officer, 238.
for desertion of post, 224.
for desertion or surrender by towns and
states, 230-2.
for desertion to enemy, 223.
for disturbing the peace, 242.
for escaping from confinement, 242.
for failing to defend an officer, 241.
for failure to appear at roll call, 238.
for insubordination, 231.
for insult exacted by agreement with the
injured person, 317.
for leaving post, 242.
for loss of arms, 236.
for mutiny, 180, 235-6.
for preventing a person from serving in
army, 221.
for rape, 178.
for refusal to enrol, 238.
for retreat, visited by Appius Claudius
upon his army, 243.
for resisting an officer, 238.
for revolt, 236.
for sleeping at post, 224.
for starting a retreat, 239.
for straggling and desertion, 222, 224.
for surrender of post to enemy for a sum
of money, 328.
for theft, 245.
for treason, 233-4.
for unfilial conduct, 242.
inflicted by Corbuio upon his army,
244 7 5 '
intention to be taken into account in.
subjecting to, 242.
liability of a custodian of a castle to, 325,
of cohorts which lost their colours, 243.
of Romans who surrendered at Cannae,
243.
of slave legions, 243.
soldiers not to be capitally punished until
emperor has been consulted, 1 80.
urged by Belli for soldier who surrendered
citadel of Ivrea, 328.
i usual types of, 242-3.
j Pupillary substitution a military privilege,
I 161.
Pupius, Lucius, 30.
Purchase, military right regarding, 185.
Puteo, Paris de (see also Index of Authors
Cited), treatise of, encourages duelling,
335-
Pyrrhus (TTuppos-, c. 318-272 B.C.), king of
Epirus, wages war with Romans, 61.
Quaestor:
office of, 50-2.
plunder turned over to, 194.
Quaestuaries, whether excused from con-
tract because of losses arising from war,
I52-3-
Quartering of soldiers upon private persons,
199.
Quartermaster general, 24.
Ouartocerii, 13.
Quatrinus (a coin), value of, 173-5.
Quinctius Cincinnatus, Lucius (c. 52o~c.
440 B.C.), Roman patriot :
orders military enrolment, 15.
voted gold crown by army, 194.
Quintilian. See Fabius Quintilianus.
Quintilius, Sextus (fl. c. 49 B.C.), 30.
Rank. Ste also Precedence:
advancement in Roman military service,
201.
criteria for advancement in military,
is- . ,
loss of, a punishment for crime, 236.
of proconsul, 43.
reduction in, punishment for falling out
of line, 237.
special concessions in law to persons of
high, 184.
39 8
General Index
Ransom :
agreement among captors to divide, is
legal, 129.
amount of, once fixed, cannot be raised,
119.
can. be demanded of prisoners in
emperor^ wars, 115.
demands for, when illegal, 298-9.
division of, special case, 127-8.
fixed according to judgement of captor,
118.
not owed to brigands and public enemies,
125-6.
of a horse, 105.
of prisoners sold, limit of, 117-18.
persons under obligation for, debarred
from military service, 16.
replaces servitude and enslavement, 98,
"3-4-
when an inheritance from a ransomed
person is held in abeyance, 109.
when promised to brigands, need not be
paid, 88.
Rapacity of soldiers in Piedmont, 84.
Rape, Albinus's and Totila's punishment
for, 178.
Ratification, effect of lack of ratification of
peace pact upon acts committed prior
to ratification, but after signing, 308.
Ravenna, Battle of (1512), 83.
Real (a coin), 194.
value of, 173-5.
weight of Spanish, 196.
Rebel:
differs from an enemy, 9.
estate of, escheats to the fiscus, 1 1 2.
pardoned rebel restored to benefit of
statutes, 112.
right to slay a rebel or seize his property,
discussed, 322-3.
sentences issued against, on score of
rebellion and war, cancelled by peace,
280.
treaty stipulation covers only those who
were rebels when treaty was made, 323.
what may be done in case of a notorious
rebel, 321.
whether amnesty granted to rebels
includes indirect subjects, 318-19.
will of a defunct, is valid, 319.
Rebellion:
plotter against his country's prosperity
is guilty of, 227,
sentences issued on score of, cancelled by
peace, 280.
suppression of, against prelates, is not
war, 9.
Recapture :
effect of postliminy on, 111-12.
Receivers in Roman state granaries, 198.
Reception staff, 35.
Records (acta) and Accounts (numeri\
keeping of, in army, 22.
Recruiting officer, penalty for enlisting
slaves, 13.
Recruits :
not yet enrolled cannot claim soldiers'
privileges, 13, 171.
persons not acceptable as, privileges of,
rank of, training departments for, 13.
Redress, action brought in court precludes
all other forms of, 333.
Re-enlisted men (evocati), defined, 30.
Referees. See Arbitrators.
Referendaries, office of, described, 55-6.
Regalia:
of a praetor, 49.
of a primicerius, 1 3 .
of a proconsul, 44.
Registration, 179.
Regium (Rhegium, *Priyiov, important
city of Magna Graecia, at the southern-
most tip of the Italian peninsula, site of
modern Reggio), 225, 235, 236.
Regnicola, Ricius de Lechio, substituted
for Furnarius at siege of Alba, 327.
Regulus, Marcus Atillius. See Atillius
Regulus, Marcus.
Reinstatement:
of indirect subjects under an amnesty
granted to rebels, 318.
of rebels who died during course of war, 3 19.
Releases, chief secretary of, 37.
Remission. See Restitution.
Remus (one of the legendary founders of
Rome, 8th century B.C.), slain for
leaping over walls of Rome, 241.
Representative, appointment of a, 74.
Reprisals :
case cited by Belli before Gonzaga and
Este, 264.'
not to be made against enemy subjects
who have changed pkce of residence,
84.
Resnulliuf, property of first seizer, 122.
Rescripts, 51.
General Index
399
Reserves (accensi), in Roman army, 29.
Residence, governor's duty of, 48.
Residences:
counts of, 37.
division of, for quartering of soldiers, 199.
Resistance :
in general, a crime, 238.
to justified attack, 65,
Resisting an officer a crime, 238.
Responsibility:
for damage as result of war, 149-52.
for death, as result of wounds, 151-2.
for participation in an act determined
by whether one is leader or follower,
293.
liability of principals for losses sustained
by their followers, 293-4.
of certain persons for debt, limited, 270.
of heirs of man who has made peace, 312.
of persons nominating officers in charge
of Roman granaries, 198.
of rulers for crimes committed in time of
war, v, for losses suffered by their
subjects, 296-7, for waging war on
unjust or insufficient grounds, 297-8,
waging an unjust war, for losses in-
flicted by his soldiers, 297.
Restitution:
by soldiers, 214-15.
procedure for demanding, under fetial
law, 78.
remission of payment for losses suffered
by his subjects granted by sovereign
without people's consent, 296.
remission of payment for losses suffered
by people dependent upon quality of
adversary, 298,
Restoration:
after peace has been declared, 280.
indiscriminate, under treaties of Charles
V and Philip II with King of France,
3I9-
in integrum, a privilege of soldiers, 182.
of captured property, 107-8.
of fortress seized in time of war by others
than enemy, 298.
of property alienated because of judicial
sentence, 284.
of property captured in unjust war, 60.
of property captured in war, under treaty
stipulation, 112.
Retaliation, crimes and wrongs not cancelled
by, under civil law, 1 39.
Retreat:
disgraceful retreat, punished by Appius
Claudius, 243.
starting, a crime, 239.
Return, treaty right to, must be employed
or right of postliminy is impaired, 104.
Revocation of a soldier's will, 169.
Revolt:
stirring up military, against the emperor,
- 24I ~ *
in army, 236.
Rewards, discussed, 191-5.
Rich not to evade all duties of military
service, 47.
Rimini (town in Italy, prov. of Forli),
Angelus and Baldus decide a case at,
168.
Riparian rental, 203,
a transferable grant, 206.
Robbers. See also Bandits; Pirates; Public
Enemies:
demand for ransom made by, 298.
fear of, justifies fortifying a church, 156.
Robbery, 47.
Roll call, failure to appear at, crime, 238.
Roman army, 15, 17-31, and passim; soldiers
of, swear to defend state, 12.
Roman citizens:
creditors forbidden to hold, for their
debts, 271.
deserters who were, how punished, 224.
relief of surrender of estate granted to,
by a Lex lulia, 271.
Roman emperors. See under each emperor's
name.
Roman empire:
greatness of, rivalled by Othman's, 61.
levy of troops in, n-12.
Roman law. See Law, Roman.
Romans, 7, 15, 61, 78, 82, 85, 86, 87, 108,
116, 174, 175, 197, 228, 229, 232, 285,
286, 303, 304.
alliance of Maccabees with, 93.
desired hope of returning home to rest on
courage, 105.
king of, 90.
people obtain pardon for Fabius Maxi-
mus, 237.
soldiers sent as spies by Scipio, 234-5.
Rome, 3, 42, 81, no, 130, 193, 196, 203,
204, 233, 259, 285, 303* 34 1 -
coronation of (Holy Roman) emperor at,
73-4-
400
General Index
Rome: (cont.}
soldiers dishonourably discharged may
not live In, 246.
Romulius Denter, 32.
Romulus (legendary founder, and 1st king
of Rome, 8th century B.C.), 32, 50,
82.
combat with Tatius, 89.
Roundsmen (circilores), 24.
Rubrius, Lucius (fl. c. 49 B.C.), 30.
Rufus, Marcus Caelius. See Caelius Rufus,
Marcus.
Rufus, Vibullius (or Caecilius), 30.
Rulers:
have authority for waging war, 63.
responsibility of, for crimes committed in
time of war, v.
whether support may be sought from an
infidel, by Christian rulers, 92-4.
Rules, chief secretary of, 37.
Rullianus. See Fabius Maximus Rullianus,
Quintus.
j
Sabines (Sabini, ancient people inhabiting
narrow strip of territory in central
Italy, west of the Apennines), 7, 89.
Sacred Mount, 271.
Safe-conduct:
discussed, 249-73 :
to whom issued; to travel where; by
whom issued; where valid, 251; granted
to enemies by commander-in-chief,
251-2; to what others he grants them;
granted by dishonest garrison com-
manders; 'blanket permits', 252; inter-
pretation of terms of, 252-3; unre-
liability of, 253; right of magistrate to
grant to criminals, exiles, and banished
persons, discussed, 253-5; granted to
enemies and revoked, 25 3 ; to sub j ects or
non-subjects not enemies, and revoked ;
to exiles to return and clear themselves
of new charge; to criminal, issued by
judges and magistrates, 254, 265;
terms of, and powers of grantor should
be scrutinized; when not made public;
military, case of; wife may use safe-
conduct granted to husband, 255;
issued to an ambassador of enemy, case,
255-6; operation of, as against creditors
of grantee; covering property in
grantee's possession which belongs to
another, 256; case upon which Belli
sat, 256-8; intention of grantor, how
to be understood; covers only transit,
and not preparations for travel, 257,
258; Belli's opinion as to whether
issued for outward journey covers
return, 259; whether a Jew is protected
by a, 259-60; whether covers heretics,
Saracens, &c.; all persons covered by,
should travel with definite purpose;
rules for determining whether a, is
good for more than once, or only for
initial use, 260; time element in a,
260-1; wording strictly interpreted;
duration of, should the original grantor
be succeeded, 261; dependence upon
will of grantor, 261-2; includes such
suite as is necessary, 263; arrest, by
grantor of person having a passport,
263-4; change in circumstances
vitiates, 264; under what circumstances
maybe disregarded; new crime vitiates ;
pledge of safety from a personal enemy,
his household, and associates, 265;
binding over to keep peace, 265-6; to
protect debtors from creditors, 266;
does not cover crime, nor debts to
fiscus, nor runaway slaves, nor a thief,
if he travels with stolen goods ; covering
one's own belongings does not cover
those of others; does not cover a debt
secured by oath, 272.
St. Peter and St. Paul, Church of, ordered
to be spared by the Goths, 130-1.
Salcedus (Salzedo, 16th-century Spanish
general), 241.
Sale:
of claims and rights, 118.
of offices, rules governing purchase, trans-
fer, and, 205-7.
of prisoners of war, 117-18.
Salute, removing hat to one another a sign
of peace, 334.
Samnites (ancient inhabitants of one of the
principal regions of central Italy) : 7,
78, 87, 107-8, 194, 237, 303.
Sanctuary, right of, 99.
Saracens ;
may take advantage of law of nations, 10.
not protected by a safe-conduct, 260.
Satan, Mohammedans are 'members of
Satan*, 93.
Satisfaction must be rendered for waging
an unjust war, 59.
General Index
401
Satricum (ancient city of Latium, situated
between the present towns of Anzo
and Velletri), surrendered people of,
sold, 87.
Saul (d. 1056 B.C.), 1st king of the Israelites,
92.
opposed by David, 93.
Savorgnanus, Germanicus.
arrested after outbreak of war by person
who had granted him a passport, 263-4.
released, upon Belli's plea, 264-5.
Savoy (district of northern Italy), 150.
Savoy, dukes of:
Charles, v.
Emmanuel Philibert, 280.
Saxony, duke of, peace imposed upon, by
emperor, 280.
Scabbards, whether they are necessary
adjuncts to swords, 2623.
Scaeva (Roman hero, fL c. 48 B.C.), 30.
Scaevola. See Mucius Scaevola, Quintus.
Scaling walls, first soldiers, rewarded, 193.
Scipio, Publius Cornelius. See Cornelius
Scipio, Publius.
Scipio Africanus. See Cornelius Scipio
Africanus, Publius.
Scriniariiy also called exceptores, 22.
Scythia (17 27*u0ia, a vast area in the eastern
half of northern Europe, and in
western and central Asia), 61 .
Secret police, duties of, 24.
Secretariat, chief of, 35.
Secretaries, in Roman civil service, 20.
chief secretary of imperial departments,
37-
Secundocerii, 13, 14, 21.
Security, national, reason for building forti-
fications, 300-2.
property given as, 54.
Seducer, a soldier may not make money
settlement with his wife's, 246.
Seizure:
actual and firm, required by law of
nations for acquisition of property,
of animals for use in military transporta-
tion, 1 86. i
of city by enemy excuses its apparent '
defection to enemy, 232.
Sejanus, Aelius (d. A.D. 31), Roman courtier,
favourite of the emperor Tiberius,
praetorian guard under, 31.
Self-succession, right of, 109.
1569.64 3
Sempronius Gracchus, Tiberius (d. 212
B.C.), Roman general:
disciplines the slave legions, 243.
orders restitution of plunder, 108.
Senate, Roman, 237, 279.
action of, in regard to mutiny in Spain,
235.
rewards soldiers from Praeneste, 194.
selected Roman praetors, 46.
writes to Marcellus about Roman soldiers
who surrendered at Cannae, 243.
Senators ;
Capuan, beheaded, 231.
forbidden to build ships, 210-11.
honour possessor of civic crown, 195.
municipal, 47; exempt from judgement
by governor, 49.
Senatorship a transferable grant in France,
206.
Senones (ancient Gallic nation in Italy on
the Adriatic), 82.
Septuagesima (one of the Sundays before
Easter in Ecclesiastical calendar, from
which that feast is reckoned), war
forbidden from Septuagesima to the
octave of Easter, 82.
Sequestration of debts owed the enemy,
discussed, 285-6.
Sergeant disciplines soldiers, in Belli's time,
238.
Sergeant-major, incompetency of, in Belli's
day, 237-8.
Sergius Catilina, Lucius (c. 108-62 B.C.),
leader of anarchical aristocrats who
conspired in an attempt to seize power
in 66 and 64 B.C.), 42.
Sertorius (d. 72 B.C.), Roman statesman
and general, governor of Spain and
Lusitania, n.
Servants: whether a broil between their
servants breaks peace between masters,
292-3.
Service, the rendering of, a sign of peace,
334-
Service claim, 201.
Service ration (militia), 203.
Service Tenderers (munifices), 51.
ServiKus Ahala, Gaius (fL c. 408 B.C.),
tribune of soldiers with consular power,
196.
Servitude, human, and enslavement re-
placed by ransom, 98. See also Enslave-
ment; Slavery,
402
General Index
Sessa, duke of, 49.
Sestertius, value of, 1735.
Sextarius (a measure of quantity), 202. '
Sforza family, 261.
Sforza, Ludovico 'II More* (1451-1510),
usurper of government of Milan, lost
Milan through defection of Swiss
mercenaries, 228.
Sharing of a grant by will, 206.
Shield, loss of, how punished, 236,
Shield bearers, 35.
Ship commanders, 1 84.
Ships, governors and senators forbidden to
build, 210-11. \
Ships of war, right of postliminy in, 105.
Shoulder-piece, loss of, how punished, 236.
Sicily, 229, 240.
Sicily, kingdom of Naples and. See Naples '
and Sicily, kingdom of. '
SHentiariii
office and duties of, described, 20. :
rule for crediting and sharing grants does ;
not hold in case of, 206. :
Silver not coined by Rome in year 347 of \
city (406 B.C.), 196. i
Single combat:
a grave wrong, 90.
whether permissible for a general, prince, i
or Hug, 89-91. i
Siraci (Siraceni; Siraces; a great and mighty '
people of Asiatic Sarmatia), 86.
Skirmishers, in Roman army, 29.
Slap:
a serious affront, 306.
resented more fiercely than wound with
sword, 317,
Slavery. See also Enslavement :
cases involving status of freedom or
slavery, 54.
no bar to praetorship, 45.
punishment for refusal to enrol for
service, 238.
Slaves:
can be praetors, 45.
captives do not become, among Christians,
116.
complaints of, against their masters,
heard, 33.
debarred from military service, 16, 17.
enrolment of, 242.
etymology ofservus (a slave), 85*
forbidden to enlist as recruits, 13.
governor acting as judge of his own, 48.
hostages become, under Roman law, 342.
legions of, disciplined by Tiberius Sem-
pronius Gracchus, 243.
manumission of, by a governor, 47.
may have vicegerents, 40.
runaway, not protected by safe-conduct,
272. '
soldiers may not allow themselves to be
made slaves, 246.
subject to right of postliminy, 103-4.
surrendered men are not, 87.
ten thousand, offered Romans at Uspe, 86.
unprofitable, 54.
when hostages do not become, 343-4.
when soldier may not name his own, as
heir, 207-8.
whether slave whose usufruct is willed is
subject to usucapion, 331-2.
Sleeping at post:
beheading of a sentry guilty of, 325.
punished in Belli's time, with death, 224.
Sloth, criminal, 239.
Smalkaldic League (1531-1541), peace
imposed by emperor, 280.
Socrates (JScoKparTj^ c. 470-400 B.C.),
Athenian philosopher, refused to escape
from prison, 228.
Sodom (ancient city of Canaan, near the
south-west extremity of the Dead Sea,
whose destruction is described in the
Bible), people of, rescued by Abraham
and his allies, 93.
Sofi (i6th century A.D.) a king of Persia,
given assistance against Turks by-
Charles V, 93.
Solarium described, 198.
Soldiers :
amenability of, to common law. See under
Law, common.
Christian, ought to respect sacred things,
.IS*- _
disabilities. See Military Disabilities,
divisional distribution and enrolment of,
13-
enlistment of, 11-12.
estate of, who die without heirs, 184.
examination of candidates for enlistment,
12.
forbidden by divine command to injure
the provincials, 212.
forbidden to hold real property in pro-
vince where stationed, 18.
honorary, 190.
General Index
4 3
impiety of, 62.
incestuous marriage of, penalty for, 212.
jurisdiction over, in business, 213.
labourers in public works, 43.
liability of, limited, 270; to enemy, 64.
licence and rapacity of, in Piedmont, 84.
may not perform as actors, nor allow
themselves to be made slaves, 246.
not to be allowed to burden provincials,
76.
not to be given free hand in attack, v.
oath of, 12.
obedience of, to an unjust lord, 63-4.
pay of, 154, 195-7.
plunder turned over to general for division
among, 96-7, 194.
presence of few, not sufficient for ac-
quisition of territory, 140.
privilege of, regarding matrimony, 179.
privileges of. See Military Privilege,
property of, in the field, not to be
seized for debt, 271.
punishment of, for various crimes. See
under Crimes.
quartering of, upon private persons,, 199.
responsibility of, for losses inflicted upon
people, 298.
rewards granted to, discussed, 191-5.
Roman, described by Livy, 28 seqq.;
mutiny of, in Pannonia, 173; sent out
as spies by Scipio, 234-5.
slap, a serious affront to, 306.
softness of, of Bella's time, contrasted
with hardihood of ancient, 200-1.
stealing from their own people, 299.
validity of agreements among, for im-
proper purposes, 147.
when soldiers come into possession of
persons or things captured, 106-7.
whence common soldiers (caligati) derive
their name, 179,
whether military privileges were enjoyed
by, in Belli's day, 188-91.
wills of. See under Wills and Testaments.
Soldo, value of, 173-5.
Solomon (c. !O33-c. 975 B.C.), 3rd king
of Israel, makes an alliance with king
of Egypt, 92.
Solon (ZoXct)v 9 c. 638-c. 558 B.C.), Athenian
legislator, states basis of common-
wealth, 1 60.
Sons, claims of, against a grant from emperor
to their father, 205.
1569.64
Sosis (3rd century B.C.), a Syracusan, be-
trayer of the city, rewarded, 229.
Soul imperilled in war, 60.
Sovereign:
adulation of a, its effect upon war, 60.
difference between powers of judge and,
281-2.
distinction in obedience between supreme
and inferior, 322.
may make a truce, 135.
Pope can compel, to make peace, 318.
power of, over vassals, in interests of
peace, 302.
right of, to confiscate and give away
property of an alleged traitor, 319-22.
right of, to despoil a notorious rebel,
321.
whether, may make peace and remit
losses inflicted upon his subjects, with-
out their consent, 296.
why he should be defended, 62.
Spain, 193.
estates in, given to Moericus, 229.
mutiny in, punished by Scipio, 235.
Spain, king of. See under name of each
king;
gives Templars* forts to Order of
Alcantara, 327,
right of, to declare war, 6.
Spaniards, Spanish, 112, 175, 224, 229.
at Ravenna and Ceresole, 83.
deserters, in Belli's day, 227.
newly discovered peoples were strangers
to, 286.
promise exacted from, at Carignano, 127.
rightly enslaved American Indians, 85.
Spanish real, a coin, 174.
Sparta (^TrapnyjLacedaemon^a/ceSatftaj^;
capital of Laconia and chief city of
Peloponnesus), 233.
Spartacus (a Thracian, the instigator of the
Third Servile War, 73-71 B.C.), 10.
Spartans, 7, 227, 232.
Spear-men (bastati), in Roman army, 29.
Spendius (d. 239 B.C.), leader of a revolt
against the Carthaginians, 10.
Spirit, implacable, condemned, 62.
Spoil. See Plunder.
Squadron commander may make contracts
for his whole squadron, 185.
Stables:
count of the imperial, 37.
overseers of, 37.
3F2
44
General Index
Standard bearers punished by Appius j
Claudius, 243.
State:
cannot be transferred to another ruler
against its will, 90.
king may not give away state or part of
realm against will of people, 302.
obligation owed to, strength of, 127.
upheld by two things, 160.
Statores, duties of, 23.
Statue, granted to Roman generals, 193.
Status :
of freedom or slavery, cases involving, 54.
of hostages under Roman law, 342.
of soldier- testator need not be certain,
169.
Statutes:
pardon restores to benefit of, 1 12.
Stipendia, meaning of, 181.
Stipulation, action by, 331.
Straggling:
distinguished from desertion, 221-2.
punished with death in exceptional cases,
224.
Strangers, defined, 286.
Stratagems, defined, 88.
Stratores. See Statores.
Stronghold. See Fortifications.
Subjects :
cannot be brought under rule of new
lord, 90.
desertion to enemy forbidden to, 227.
granting of safe-conducts to, 251, 254.
how seizure of, affects rights of lords,
142.
not at fault even when war is unjust, 297.
not to be overburdened with taxes to
pay for a war, 75-6.
not to pry into motives for war, 65.
whether amnesty to rebels includes in-
direct subjects, 318-19.
whether included in peace-pact between
chief sponsors of war, 290.
Substitute:
responsibility of principal for acts of,
325-6.
who may be substituted, 325, 326.
Succession:
confers dominion, 90.
effect of acquittal from a charge of felony
upon, 281-2.
sovereign cannot set aside rights of, 90,
to wife's estate, 160.
Successor, bound by treaties of peace made
by his predecessor, 302.
Suit: '
for production and reclamation of pro-
perty, 331.
to recover inheritance, 331.
to recover lands captured by enemy, 104.
Sulla. See Cornelius Sulla, Publius.
Superintendent, 49.
of works, 43.
Supplies :
administered by city prefect and food
administrator, 33.
appeal from a judgement concerning, for
army, 186.
distribution of, 5 1.
not to be demanded of provincials by
soldiers, 199.
Surrender (in civil procedure) :
of an estate to satisfy creditors, discussed,
266-72:
statutes degrading bankrupt ; surrender
by messenger or letter, 267; no change
of mind allowed after surrender has
been formally made, 267-8; liability
of debtor after, 268, 269, 270; any
debtor (even a corporation) may, 269;
recourse of, how developed in Roman
law; relief of, afforded to Roman
citizens by a lex lulia, 271; what
refusal of, entails, 271-2; to secure
release from prison, 272.
of an inheritance, 90.
Surrender (in war):
hostages given to secure, 341.
of cities sometimes justified, 233.
of garrison when commander is impor-
tuned by civil population, 240.
of post for money serious offence, 327-8.
of towns and states when unjustified,
332-3.
parleying leads to, 328.
Roman formula of, 87.
to powerful third state, in order to
prevent capture by enemy, 303.
unwarranted personal, 225-6.
whether it is permissible for king to
accept surrender of city and defend it
against a king with whom he is allied,
304.
Surrender (under a treaty of peace):
of a guilty person into hands of injured
one, 317-18.
General Index
405
of stronghold, should be in good faith,
302.
Surrendered men:
do not enjoy rights of postliminy, 104.
of a modern city, ought to be spared,
88.
Romans refuse to receive slaves sur-
rendered by Uspe, 86.
status of, 87.
what discretion should be exercised in
regard to punishing, 318.
Surveyors, primicerius of, 13. See also
Mensores.
Suspicion is not a cause for breaking the
peace, 301.
Sustenance does not include clothing, 263.
Sutrium (ancient town of Etruria, 32 miles
north-west of Rome; site of present
town of Sutri), recovered from the
Aequians, and restored to its former
position, 232.
Swiss :
judge crimes according to their own, and
not Roman law, 242.
mercenaries, defection of, causes Ludo-
vico Sforza to lose Milan, 228.
Sword:
assault upon another soldier with, crime,
2412.
giving of, in surrender, meaning of, 124.
loss of, how punished, 236.
whether ban upon transportation of,
includes scabbards also, 262-3.
Syndics may not adjust an injury done to
state without general authorization,
316.
Syphax (d. c. 2OI B.C.), king of Numidia,
234.
Syracuse (Syracusae, 27upa/coucrat ? the most
powerful and important of the Greek
cities of Sicily, 229.
Syria (Svpla, popularly, Aram; an ancient
land on the eastern shores of the
Mediterranean), 60, 167.
king of, hired by Asa to fight Israel, 92.
riiy 26.
Tacfarinas (d. A.D. 24), a Numidian, in
revolt against Rome, 10, 243.
Tacitus, Marcus Claudius (chosen Roman.
emperor, 275, d. 276), Modestus writes
a treatise on warfare for, iv.
Tamerlane (1333-1405) Timur-Leng or
Timur Bey; Tartar conqueror, in-
vasion of Asia Minor by, 60 i.
Tarentines (TapevrZvoi, Tarentini: in-
habitants of the ancient city of Magna
Graecia, Tapas 1 , Tarentum; modern
Taranto, in southern Italy), 7.
Tarpeian Rock, bodies of deserters thrown
from, 224.
Tarquinii (one of the most ancient of
Etruscan cities, about 60 miles north-
west of Rome upon Via Appia, near
modern city of Corneto) :
goods seized by the people of, restored,
107.
people of, sacrifice 307 captive Romans,
86.
Tarquinius, Sextus (fl. c. 484 B.C.), son of
Tarquinius Superbus, deserts to Gabii,
in order to spy upon it, 234.
Tarquinius Superbus (534-510 B.C.), tradi-
tional 7th and last king of Rome, 32,
81, 87.
Tatius (8th century?), Sabine prince, later
joint ruler of Rome with Romulus,
82.
combat with Romulus, 89.
Tattooing in Roman army, 12.
Taxes:
Campanians ordered to pay, 196.
exemption from, in. time of war, 153-6.
grain-tax, 54.
mendicant friars who own property not
exempt from, 211.
methods of levying, 154-
poll, 1 6.
sale of property to satisfy delinquent, 54.
soldiers' failure to pay, does not involve
confiscation of property, 179, 215;
makes them amenable to common law,
215.
'tenant-farmers* agreements' and, 152.
war, 74-7.
Tellers in civil service, 27.
Templars (Pauperes commilitones Christi
Umplique Salomonict), forts of, de-
livered over to king of Spain, 327,
Tenant-farmer :
agreement, discussed, 152.
how excused from payment, 152.
Tencteri (German tribe, first mentioned
by Caesar), invasions of, 60.
Termini a quo and ad quern, in interpretation
of safe-conducts, 258.
40 6
General Index
Terms :
of a pact ending war should be carefully
read, 281.
of peace-treaty should be precise, 290.
of safe-conduct, interpretation of, 252-3,
258, 261; and powers of the grantor
should be scrutinized, 255.
Tertiocerii, 13.
^Tessera. See Grain tickets.
Testaments, pupillary. See Wills and Testa-
ments.
Testimony, soldier not bound to give,
against his will, 186.
Textile works, directors of imperial, 37.
Theft:
does not inflict injury, but loss, 311.
of arms, how punished, 236.
of fowl, how punished by Pescennius
Niger, 245.
upon an inheritance not yet taken up,
330-2.
whether peace is violated by, 307-8.
Theodora (d. 548), wife of Justinian I, and
empress of the Eastern empire, 17.
Thessalian, Jason the, 233.
Thief not protected by safe-conduct if he
travels with stolen goods, 272.
Things in natural free state are not owned,
122.
e Third-line men' in Roman army,, 29.
Thrace (one of the divisions of Greece,
lying on the northern shore of the
Aegean), 34, 108.
revolt of the Thracians, 15.
Tiber (Italian river), 341.
Tiberius (Tiberius Claudius Nero, b. 42
B.C., chosen Roman emperor A.D. 14,
d. 37), 10, 244,
asked to return Phraates to the Parthians,
342.
Caligula succeeds, 179.
mutiny in Pannonia occurs during the
reign of, 175.
Time:
effect of, in Interpretation of truces,
treaties, &c., 143-4.
wrong custom not legitimized by lapse of,
335-
Tiridates I 'the Parthian' (fl. c. A.D. 50),
king of Armenia, surrendered his
daughter to Rome as a hostage, 341.
Tithe from the plunder reserved for priests
and Levites, 97,
Titles of honour, derivations of, 42.
Toga, use of, sometimes allowed to hostages,
342.
Torch-bearers, 35.
Torquatus. See Manlius Torquatus.
Torture, legal:
demand for ransom enforced by, 115.
punishment for desertion to enemy, 223.
Roman military accountants not exempt
from examination under, 26.
soldiers not to be put to, 187-8.
Totila, king of Ostrogoths, from 541 to
552, punishes an armour bearer, 178.
Towns, defection of, 230-3.
Trade:
counts of, 36.
soldiers forbidden to carry on beyond
empire, 215.
Traders:
advantage of market by reason of advance
information, 140.
debarred from military service, 1 6.
protected in wartime by canon law, 81.
soldiers in Belli's day were traders, 188.
with the enemy, provincials and, 121.
Traitor, 89, 238.
colluder a, 295.
vassal who adheres to enemy of his lord,
^292.
Trajan (Marcus Ulpius Nerva Traianus, b.
52, chosen Roman emperor 98, d. 117),
Frontinus's treatise on warfare written
for, iv.
on thefiscus, 55.
Transfer:
of ckims and rights, 118.
of prisoners of war, 117-18.
Transportation:
agents, 25.
chief of, 37.
of goods except arms, by permission, does
not seem to allow adjuncts to arms,
262-3.
of merchandise, under safe-conduct,
of soldiers' biscuit, no exemption from,
198.
seizure of animals for purposes of, 186.
I soldier exempted from transportation
' service, 185.
j Treason:
t case of confiscation and donation of pro-
I P ert y as punishment for, 319-22.
General Index
407
conspiring to kill certain officers of em-
peror, 184.
deserters liable to charge of, 233-4. i
disgraces children of guilty person, 296. !
heinousness of, 295-6. ;
operation of automatic penalty for, 282.
penalties for, 233-4.
plotting against one's count ry's pros-
perity, 227.
refusing to honour a safe-conduct of
emperor, 254.
who are guilty of, 240-1.
Treasurers, 23.
of emperor or empress to be tried by
emperor, 183.
Treasury:
counts of, palatini, 23.
prefect of, 3 3, 37, 5 1.
presidents of, 53.
proceeds from sale of plunder turned over
to the, by Valerius, 194.
tribunes (chiefs), of, 27.
Treatises on tactics, iv.
Treaty or Treaties: For individual treaties
see under name; see also Alliance;
Agreement,
effect of, in postliminy, 104-5; upon
private rights, 319.
indiscriminate restoration of property
under some, 319.
pacts and covenants not to be trifled
with, 139-40.
restoration under stipulation of, 112.
right to return home accorded captives
by, 104.
Trebatius Testa, Gaius (c, 1st century B.C.),
Roman jurist, 330.
Trebonius, Gaius (d. 43 B.C.), Roman
politician, 45.
Trent, the Cardinal of. See Madrutz,
Christoph von.
Trtuga, treugare, trfugarius, discussed, 135.
Trial:
of military offences, and civil offences
committed by soldiers, 182-4.
of prisoners of military rank, 183-4.
should take place where offence was com-
mitted, 213.
Tribune (tribunus^ derivation of, 28.
Tribunes:
children sometimes appointed, 177.
discipline soldiers, 238*
of treasury, 27.
select military police, 24.
senior of the, 28.
Tribunianus, 50.
Tribus. See Class Privilege,
Tribute, 25.
Triumph granted to Roman generals as
reward, 193.
Troops:
imperial, 51.
senior and junior foreign, 35.
Troy ("IXiov, Tpola : the city in Troas whose
fall, in 1184 B - c -> ended the war
described by Homer), 78.
Truce:
advantage taken of a truce, 140.
canonical, described, 82-3.
capture during, 142-3.
desertion to enemy in time of, 225.
if violated by one party, whether it may
be violated by other also, 138-9.
infliction of punishment after expiration
of truce, 139.
not same as peace, 136.
time, and interpretation of, 143-4.
what a truce is,, and who may make one,
135-6.
whether a truce is more like peace than
war, 136-7.
whether declaration of war is necessary
after expiration of a, 144.
Truce of Genoa with Pisa, 323.
Truce of Nice (between Francis I and
Charles V, June 1 8, 1538):
amounted to a peace, 1 37.
provision of, not to break, 138.
Truce of Vaucelles (between Henry II,
Charles V, and Philip II, Feb. 5, 1555) :
capture of Vignale after signing of, 143.
property arrangements of, discussed, 112.
Trumpeters identified with cornuularii,
24.
Trustee appointed for property of captives,
109.
Tullius Cicero, Marcus (106-43 B.C.);
Roman statesman, orator, philosopher,
119.
consulship of, 42.
Tullus Hostilius (672-640 ? B.C.), traditional
3rd king of Rome, 32, 50,
sends envoys to Alba, 78.
Tunis:
alliance of Charles V with Mulei
Hassan, 92.
408
General Index
Tunis: (cont?)
Charles V in, 171.
Turin, 140, 174.
retained by French under treaty of
Cateau Cambresis, 280.
Turks, 77, So, 195, 232, 279, 342.
capture and enslavement in wars of, with
Christians, 224.
live in field on almost nothing, 200.
observe old law of nations, 108.
Turnus, legendary king of the Rutulians,
slain by Aeneas, combat with Aeneas,
Tyre (Tupo?, Tyrus; the most celebrated
and important city of Phoenicia),
Solomon makes an alliance with king of,
92.
Ubertinus of Bologna, settlement of a case
on advice of, 150.
Ulpian (Dornitius Ulpianus, c. 170-228),
Roman jurist, appointments by Alex-
ander Severus, 25. I
Ulysses ('OSvoxrctfe, Odysseus, Ulyxes, !
Ithacus; Homeric hero, son of Laertes j
(or Sisyphus), king of Ithaca, husband j
of Penelope), 78. ;
Unfilial conduct, abusive language towards |
a parent, 242. |
Union (secular association, corjtoratus). See \
also Guild. I
of cobblers, 184.
Unworthiness a bar to military service, 17.
Usipites (Usipi ; a tribe of Germans dwelling !
along the Rhine, invasions of, 60. I
Uspe (town of the Siraci in Sarmatia, east
of the Tanais, i.e., in the territory
separating Black and Caspian Seas),
Romans attack, 86.
Usucapion, whether slave whose usufruct
was willed is subject to, 331-2.
Usufruct, 331-2.
Valentinian, Vegetius's treatise on warfare j
written for, iv. !
Valenza (town in Piedmont, 7 miles north
of Alessandria), custodian of citadel of,
who was executed for surrender, known
to Belli, 327.
Valerian (Publius Licinius Valerianus,
chosen Roman emperor, 254, d. 268),
'free-bread* granted to Aurelian and
Claudius by, 202.
Valerius Corvinus or Corvus, Alarcus (c.
37O-C. 270 B.C.), Roman general and
dictator :
reward granted to, 193.
sells surrendered people of Satricum, 87.
Valerius Potitus, Gaius (Roman consul, 410
B.C.), 51, 195,238.
sells plunder, and gives proceeds to
treasury, 194.
Valour of soldier should determine his share
of plunder, 96.
Vandals, invasion of the, 60.
Vassal :
adherence of, to enemy of his lord,
involves forfeiture of fief, 292.
at whose expense, goes to war, 73, 74.
Belli advises a, in regard to insane
dependant, 47.
defence of right of a, by war, 10.
desertion of his lord in battle, 71-3; in
war, 72-3, 228.
fortification of estate of, to be at his
lord's expense, 299.
injury of, by subordinate, 48.
may not exchange his lord for another,
302.
must obtain consent of overlord to wage
war, 7-8.
not deprived of fief unless guilt is proved,
320.
not to pry into motives for a war, 65.
oath of allegiance from a, for whom it
does not establish direct right, 141.
obedience of, to an unjust lord, 63, 64.
obligation of, to his lord in war, 66-70.
of emperor, may make an alliance with
another king, 292.
of overlord, duty and service of, to king,
69, 70. _
overlord is bound to defend, against
aggressors, 8.
owes profound respect to his lord, 311.
power of sovereign over, in interest of
peace, 302.
reinstatement of overlord's indirect sub-
jects should not be to prejudice of his
vassal, 318-19.
rights of lord are above those of his, 68.
war against enemy's, 83-4.
Vaucelles, Truce of. See Truce of Vaucelles.
Vegethis, Flavius, Roman tactician, writes
a treatise on warfare for Valentinian, iv.
Veientians or Veientines (Veientes; the
General Index
409
inhabitants of an ancient Tuscan city
of Etruria), 7, 229.
Veii (see above, Veientians or Veientines;
Veii is the site of the present Isola
Farnese), 15.
Camillus vows a tithe of spoils of, to
Apollo, 97.
Venetians, 10, 319.
right of, to declare war, 6.
Vengeance:
how to be judged, in determining who
violated the peace, 306-7.
makes an otherwise just war unlawful,
60.
not to be heavier than injury avenged,
305-6.
provincials may not take, 120.
ruthlessness in, condemned, 62.
Venice, 9, 256.
army of, commanded by Carmagnola,
261.
not subject to empire, 10.
treaty of, with king of Hungary, 319.
Venice, Treaty of (between Republic of
Venice and king of Hungary, February
25, 1358), 319-
Venue :
entrance upon military service does not
permit change of, 215.
'privilege of court* does not extend to
change of, 213.
Vestia, Oppia (fl. c. 210 B.C.), Capuan
heroine of Second Punic War, rewarded
for aiding Roman prisoners, 233.
Vestments, warders of linen, counts of, 37.
Vibulenus (d. c. 8 B.C.) a common soldier
and mutineer, punishment of, by
Drusus, 235.
Vibullanus, Quintus Fabius. See Fabius
Vibullanus, Quintus.
Vicegerents, 38.
are higher magistrates, 46.
discussed, 39-41.
rank of, 25,
Vicenza, 174.
Victuallers of Roman army, 26.
Vignale (town in Piedmont): captured by
Brissac after signing of truce of
Vaucelles, 143.
Villages, possession of, when occupied by,
and comforting both armies, 140-2.
Villanova, retained by French under treaty
of Cateau Cambresis, 280.
Vincent the Spaniard, rule of, 139.
Violence, whether injury involves, 311. '
Viriathus (d. 140 B.C.), Lusitanian chieftain,
noted for fair division of spoils, 147.
Volscians (Volsci: non-Latin race inhabit-
ing central Italy in ancient times),
7,107,193,^196,231.
Volumnius, Lucius (fl. c. 296 B.C.), Roman
statesman, restores property captured
by Samnites, 107-8.
Voluntary giver, liability of, limited, 270.
Volunteers, 107.
moral duty of, regarding justice of a war,
6 *- . . .
responsibility of, for losses inflicted upon
the people, 298.
Vow and governor's duty of residence, 48.
Vulcan (classical divinity), tithe of spoils
dedicated to, 97.
War:
against enemy's dependants and allies,
83-4-
antecedent to peace, by Divine Will, 3.
antiquity of, 3.
Church restricts engines of, 1 86.
consular powers in time of, 42.
court of last resort, u.
danger of renewal of, justifies slaying
captured enemy leader, 91.
days and seasons when not permitted,
82-3.
declaration of. See Declaration of War.
defensive, the most desperate, 61.
derivation of name of (bellum), 3, 4.
desertion in time of, 71-3.
difference between war and truce and
peace, 137.
fertility of soil a cause of, 61.
for plunder, a sin, 62.
how to be waged, 89.
imperils soul and lire, 60.
in heaven, 3.
mixed character of, influences duty of
soldier, 64.
oath not in harmony with practise of, is
invalid, 127.
objective of, is peace, 59.
obligation of vassal to follow his lord to
foreign war, 70, 71,
of brothers, 3.
origin of, 4,
our Lord the Judge of rulers, 59.
410
General Index
War (cont.).
outward and inward, 5.
permissible to defend one's self, 61 ; state,
emperor, king, or lord, 62.
poison not to be used in, 89,
preferable to doubtful peace, 279.
purpose of, 278.
responsibility for waging, on unjust or
insufficient grounds, 297-8,
responsibility of leaders in war, for losses
sustained by their followers, 293-4.
rights of postliminy and enslavement in
civil, 10.
sanctioned, but not allowable for sake of
loot, 212.
subjects are not at fault, even in unjust
war, 297.
waged for empire and glory, 61.
will persist to end of time, 3.
without justice is brigandage, v, 59.
what things are to be frowned on in, 62.
woman a cause of, 61.
War (International Law) :
crimes committed in time of, respon-
sibility for, v.
declaration of war. See Declaration of
War.
effect of, on mutual rights of citizens, 284.
five things necessary for a just war, 59.
indemnity for losses arising from, 149-53.
just and unjust, 5.
justice or injustice of, determines whether
surrendered city is to be defended
against one's own allies, 304.
kinds of (offensive, defensive, and for
recovery of property), 5.
manner of waging, may make an otherwise
just war unjust, 60.
mixed character of, 64,
objective of, is peace, 59, 335,
occasion for, must be just, 94.
permissible to avenge injury, 8.
private, permitted in ancient times, 5.
public, an outgrowth of law of nations,
335> 34 1 ; allowed by divine law, 335.
results of, on contracts, 151-3.
rights of, in certain cases, n.
satisfaction must be given in case of
unjust, 59.
sentences issued on score of, cancelled by
peace, 280.
stronghold captured by enemy not to be
reclaimed by law of nations, 299-300.
things captured from enemy in just, may
be lawfully retained, 298.
unjust on five grounds, 5.
when must be terminated, 60.
when over, law of war and of nations
lapse in some respects, 225.
whether all concomitants of, are done
away with by making of peace, 280.
whether peace is violated if new cause of,
arises, 304-5.
who has the authority to wage, 63.
War, Law of:
capture under, affects property owner-
ship as validly as contract, 112.
deceptions and stratagems under, 88-9.
oath to enemy binding by, 126.
pledges and oaths under, 88.
regulations of war to be observed, 126-7.
unauthorized waging of, 241 .
War tax, 74-9.
! Ward, guardian may make peace for, 313.
Warders :
of insane, responsibility of, 48.
of linen vestments and personal wearing
apparel, 37.
Watch:
night, 22.
outpost, 22.
prefect of, 33.
punishment of deserters from the em-
peror's, 224.
Watchword, betrayal of, 241.
Water, permission to draw, implies per-
mission to travel to, 256.
Weaker, protection of, against stronger,
duty of governor, 47.
West, the (American continents), 85.
Wife. See also Husband and Wife,- Dowry:
charges against, under 'husband's right',
184.
claims of, against grant made to husband
by emperor, 205.
gifts from, to husband for military use, 160.
of soldier must be free-born, 179.
proconsul liable for acts of his, 43.
soldier forbidden to act as deputy for his
wife, 212; marry, or take with him,
into provinces, 211.
soldier may not make money settlement
with seducer of, 246.
Will:
death not a change of, but a ceasing to
will, 262.
General Index
411
safe-conduct depends upon will of
grantor, 261.
Wills and Testaments:
adoption of son after having disinherited
and emancipated him, 336-7.
children, though in the service, not per-
mitted to make, 177.
disposition ofcpeculium castrenss by, 161.
effect of military privilege upon soldiers'
161-72:
appointment of substitute heir, 162-3.
assignments of property, 164-7, 168.
cancellation of previous wills, 170.
civil possessions, 164-8.
contratabular proceedings, 167-8.
deductions under Trebellian and Fal-
cidian laws, 172.
elegibility of heir, 172,
emancipation under; discharge, 172.
exile as legatee, 172.
fdeicommissum, 164-5, 169, 172.
knights', 171.
not broken by subsequent birth of son,
169-
privilege extends to military attendants
and camp-followers, 170.
recruits not yet formally enrolled, 171.
revocation of wills, 169.
right of accretion, 164, 167, 168, 170.
soldier may die testate in part and in
part intestate, 163, 165-8.
soldier under sentence of death, 171.
status of soldier-testator need not be
certain, 169.
two wills, 169.
under common or special law, 161-2.
witnesses, 161.
effect of postliminy on codicils of a
captive, ill; on pupillary testaments,
iio-n.
inheritance, and right to make peace with
testator's murderer, 313-15.
made null through crime, does not regain
its validity, 319.
not broken by a posthumous child before
its birth, 301.
of a defunct rebel, valid, 319.
of soldiers of Belli J s day, privileges
regarding^ 190.
of some cardinals, executed by permission
of Pope, 161,
pact between soldiers regarding inherit-
ing from one another is valid, 185.
soldier cannot make courtesan or con-
cubine his heir, 177.
soldier may make, for his son, 161.
soldiers amenable to common law for
writing in legacy to themselves in
another's, 215.
soldiers', not subject to challenge, 185.
soldiers who are heretics lose passive
testamentary capacity, 215,
validity of Christian captives', 95-6,
II5 '
value of legacy of privilege or honour
transferable by, 204.
Wine:
gifts of, to a governor, 48.
sour, ordered for army by Pescennius
Niger and Avidius Cassius, 245.
Withdrawal, whether private persons are
affected by their state's, from a terri-
tory under a treaty, 319.
Witnesses to a soldier's will, 161,
Women:
a cause of war, 6l.
daughter may make peace, 315.
given as hostages, 341.
not exempt from ills of war, 80.
under disgraceful suspicion may not be
a soldier's heir, 207.
Woollen mills, directors of, 37.
World conquerors, who the first were,
61.
Wounds as a cause of death, determination
of, 151-2.
Writing, ability in, required of some classes
of soldiers, 22.
Xenophon (Scvo^v, a 445-0. 355 B.C.),
Athenian historian and general, his
Cyropaedia, 19.
THE CLASSICS OF INTERNATIONAL LAW
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Pufendorf, Samuel : Elementorum jurispmdentiae universalis libri duo. 2 vols, [No. 15 of the
series.] Oxford, 1931. Price, in Great Britain, 305. j in United States, $10.00.
Vol. I. A Photographic Reproduction of the Edition of 1672, with an Introduction by Hans Wehberg,
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Vol. II. A Translation of the Text, by William Abbott Oldfather, with a Translation (by Edwin H.
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Pufendorf, Samuel : De jure naturae et gentium libri octo. 2 vols. [No. 17 of the series.] Oxford,
1934. Price, in Great Britain, 635-. ; in United States, $10.00.
Vol. I. A Photographic Reproduction of the Edition of 1688, with an Introduction by Walter Simons,
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66a-fviii-f 1,002 pages.
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Rachel, Samuel : De jure naturae et gentium dissertationes. Edited by Ludwig von Bar. 2 vols.
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Vol. I. A Photographic Reproduction of the Edition of 1676, with portrait of Rachel, Introduction
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Teartor, Johann Wolfgang : Synopsis juris gentium. Edited by Ludwig von Bar. 2 vols. Washing-
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Vattel, E. de: Le droit des gens, 3 vols. Washington, 1916. [No. 4 of the series.] Price, $8.00.
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Victoria, Franciscus de: Relectiones: De Indis and De jure belli. Edited by Ernest Nys. i vol.
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Classics of International Law
Wheaton, Henry: Elements of International Law. i vol. [No, 19 of the series.] Oxford, 1936.
Price hi Great Britain, 20*. ; in United States, $4.00.
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Wolff, Christian von: Jus gentium methodo scientifica pertractatum. 2 vols. [No. T3 of the
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Vol. I. A Photographic Reproduction of the Edition of 1764, with an Introduction by Otfried
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Introduction by Otfried Nippold, and a portrait of Wolff. 111+565 pages.
Zouche, Richard : Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem ex-
pHcatio. Edited by Sir T. Erskine Holland. -2 vols. Washington, 1911. [No. i of the series.]
Price, $4.00.
Vol. I. A Photographic Reproduction of the First Edition (1650), with Introduction, List of Errata,
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