View of War 1722 Dug Up by Michael Miller

A View of War. The year: 1722
[Some Middle English words modernized, author's italics lost in this posting]

Molloy, Charles. (1722). De Jure Maritimo Et Navali: or A Treatise of Affairs Maritime and of Commerce, Seventh Edition. London: John Walthos. [Charles Molly (1646-1690)]

"But then such War must be just, and he that undertakes it must be a Sovereign: the just caudes to make a War are our Prince's or Country's defence, and that of our Allies, the Satisfaction of our
Injuries, or theirs; our just Pretensions to an Estate or Right; Divines have added added another, not only the defence of Religion, but its Advancement and Propagation, by the way of Arms, and some the extirpation and rooting up a contrary" (4).

"VI. Publick War is either Solemn by the Laws of Nations, or else less Solemn. What we here call Solemn is commonly call`d Just, in the same sense as a just Testament is opposed to Codicils, not that it is not lawful for him that pleases to make Codicils, but because a Solemn Testament hath by the Civil Law some peculiar effects; and this difference is worth Observation, feeing many misunderstanding the Word Just conceive all Wars to be condemn`d as unjust and unlawful, whereunto this Appellation of Just is not agreeable.

VII. That War, according to the Law of Nations, may be Solemn, two things are requisite: First, That it be waged on both sides by his Authority who hath the highest Power in the Commonwealth. Secondly, That certain Rights be used (of which we shall speak in due place) one of these without the other (because they are both required) doth not suffice. Publick War less Solemn may want those rights, and be waged against private Person, and have for the Author any Magistrate. And according to the opinion of most Civilians, if the matter be considered without Civil Laws, it seemeth that every Magistrate hath right to wage War, as for the defence of the People committed to his Charge, so for the Exercise of Jurisdiction, if he be opposed
by Force: But because by War the whole Commonwealth is endangered; therefore by
the Laws of all Nations that War be not undertaken without the Authority of him
whose Power in the Commonwealth is the highest, there is extant such a Law of Plato's and in the Roman Law it is called Treason in him who without the Command of the Prince, hath waged War, or listed Soldiers, or raised an Army; in the Cornelian Law brought in by L. Cornelius Sylla
it was, without the Command of the People; in Justinian's Code is extant a
Constitution of Valentinian and Valens, None have leave to take any Arms without our knowledge or direction. And my Lord Coke in his Third Institutes observes, That by the Common Law of this Realm it was High-Treason to levy a War without Authority from the King for to him it belongeth only. And the reason why it should be so subjected is, because that natural Order for
preserving of peace among Men requires that an Authority and Council in undertaking of War should remain in Princes.

VIII. But as all Laws must be interpreted by Equity, so must this Law; and therefore there is no Question but that `tis lawful for one having Jurisdiction by force of those which we call a peaceable Guard or Power, viz. Constable, Serjeants, Watch men, or, to constrain a few disobedient Persons, and no eminent danger to the Commonwealth. Again, if it be so present a danger, that time will not admit of Consultation with him who hath Supreme Power, here also necessity affordeth anther Exception; and therefore in Garrisons, if the Townsmen should endavour to fall over to an Enemy, they may be dealt withal as Enemies by the Governor
of the Garrison, and by that Right L. Pinarius Governour of Enna, a Garrison in Sicily, having information that the Townsmen were falling off to the Carthaginians, making slaughter of them kept the Town: and the reason why such extraordinary Force is called War, for that the same is commenced by the right of the Magistrate, in which case the War is suppos`d to be made by the highest Power, because every one is judged Author of that which he giveth another Commission
to do; besides the universal reason which warrants the act, which requires that all Dangers, Rebellions, and Insurrections be withstood and checkt in the bud, and tho` this is called War, yet this strictly is not properly War, tho` the Parties who suppress or punish are impune.

IX. But War properly by the Laws of this Realm or Solemn, is, when the Courts of Justice
are shut up, and Judges and Ministers of the same cannot protect Men from violence, not distribute Justice: so when by Invasion, Insurrection, Rebellion, or the like, the current of
Justice is stopt and shut up. Et filent leges inter arma, then it is said to be time of War..." (4-6).

X. Wars, though undertaken by publick Authority, must have the Effects of Law, that is, there must be a just cause for the undertaking the same;....Now amongst the first principles of Nature there is nothing necessarily repugnant to War, there is much in favour of it; for both the end
of War, the conservation of Life and Members, and the keeping or acquiring of things useful unto Life is most agreeable unto those Principles; and it need be, to use Force to that purpose is not disagreeable, since every thing hath by the Gift of Nature strength, to the end it may be able to defend and help, and therefore be is by Nature fitted for Peace and War..." (6-7).

"A Truce is an Agreement, whereby tho` the War continue, yet all acts of Hostility do for a while cease, for between War and Peace there is no Medium, it is and may be called a War..." (138).