De Jure Belli ac Pacis
CHAPTER 1: On War and Right
Of War--Definition of War--Right, of Governors and of the governed, and of equals--Right as a Quality divided into Faculty and Fitness--Faculty denoting Power, Property, and Credit--Divided into Private and Superior--Right as a Rule, natural and voluntary--Law of Nature divided--Proofs of the Law of Nature--Division of Rights into human and divine--Human explained--Divine stated--Mosaic Law not binding upon Christians.
I. THE disputes arising among those who are held together by no common bond of civil laws to decide their dissensions, like the ancient Patriarchs, who formed no national community, or the numerous, unconnected communities, whether under the direction of individuals, or kings, or persons invested with Sovereign power, as the leading men in an aristocracy, and the body of the people in a republican government; the disputes, arising among any of these, all bear a relation to the circumstances of war or peace. But because war is undertaken for the sake of peace, and there is no dispute, which may not give rise to war, it will be proper to treat all such quarrels, as commonly happen, between nations, as an article in the rights of war: and then war itself will lead us to peace, as to its proper end.
II. In treating of the rights of war, the first point, that we have to consider, is, what is war, which is the subject of our inquiry, and what is the right, which we seek to establish. Cicero styled war a contention by force. But the practice has prevailed to indicate by that name, not an immediate action, but a state of affairs; so that war is the state of contending parties, considered as such. This definition, by its general extent, comprises those wars of every description, that will form the subject of the present treatise. Nor are single combats excluded from this definition. For, as they are in reality more ancient than public wars, and undoubtedly, of the same nature, they may therefore properly be comprehended under one and the same name. This agrees very well with the true derivation of the word. For the Latin word, Bellum, WAR, comes from the old word, Duellum, a DUEL, as Bonus from Duonus, and Bis from Duis. Now Duellum was derived from Duo; and thereby implied a difference between two persons, in the same sense as we term peace, UNITY, from Unitas, for a contrary reason. So the Greek word, B @ 8 g : @ H , commonly used to signify war, expresses in its original, an idea of multitude. The ancient Greeks likewise called it 8 L 0 , which imports a DISUNION of minds; just as by the term H L 0 , they meant the DISSOLUTION of the parts of the body. Nor does the use of the word, WAR, contradict thisx-large r acceptation of it. For though some times it is only applied to the quarrels of states, yet that is no objection, as it is evident that a general name is often applied to some particular object, entitled to peculiar distinction. Justice is not included in the definition of war, because the very point to be decided is, whether any war be just, and what war may be so called. Therefore we must make a distinction between war itself, and the justice of it.
III. As the Rights of War is the title, by which this treatise is distinguished, the first inquiry, as it has been already observed, is, whether any war be just, and, in the next place, what constitutes the justice of that war. For, in this place, right signifies nothing more than what is just, and that, more in a negative than a positive sense; so that RIGHT is that, which is not unjust. Now any thing is unjust, which is repugnant to the nature of society, established among rational creatures. Thus for instance, to deprive another of what belongs to him, merely for one's own advantage, is repugnant to the law of nature, as Cicero observes in the fifth Chapter of his third book of offices; and, by way of proof, he says that, if the practice were general, all society and intercourse among men must be overturned. Florentinus, the Lawyer, maintains that is impious for one man to form designs against another, as nature has established a degree of kindred amongst us. On this subject, Seneca remarks that, as all the members of the human body agree among themselves, because the preservation of each conduces to the welfare of the whole, so men should forbear from mutual injuries, as they were born for society, which cannot subsist unless all the parts of it are defended by mutual forbearance and good will. But as there is one kind of social tie founded upon an equality, for instance, among brothers, citizens, friends, allies, and another on pre-eminence, as Aristotle styles it, subsisting between parents and children, masters and servants, sovereigns and subjects, God and men. So justice takes place either amongst equals, or between the governing and the governed parties, notwithstanding their difference of rank. The former of these, if I am not mistaken, may be called the right of equality, and the latter the right of superiority.
IV. There is another signification of the word RIGHT, different from this, but yet arising from it, which relates directly to the person. In which sense, RIGHT is a moral quality annexed to the person, justly entitling him to possess some particular privilege, or to perform some particular act. This right is annexed to the person, although it sometimes follows the things, as the services of lands, which are called REAL RIGHTS, in opposition to those merely PERSONAL. Not because these rights are not annexed to persons, but the distinction is made, because they belong to the persons only who possess some particular things. This moral quality, when perfect is called a FACULTY; when imperfect, an APTITUDE. The former answers to the ACT, and the latter to the POWER, when we speak of natural things.
V. Civilians call a faculty that Right, which every man has to his own; but we shall hereafter, taking it in its strict and proper sense, call it a right. This right comprehends the power, that we have over ourselves, which is called liberty, and the power, that we have over others, as that of a father over his children, and of a master over his slaves. It likewise comprehends property, which is either complete or imperfect; of the latter kind is the use or possession of any thing without the property, or power of alienating it, or pledges detained by the creditors till payment be made. There is a third signification which implies the power of demanding what is due, to which the obligation upon the party indebted, to discharge what is owing, corresponds.
VI. Right, strictly taken, is again twofold, the one PRIVATE, established for the advantage of each individual, the other, SUPERIOR, as involving the claims, which the state has upon individuals, and their property, for the public good. Thus the Regal authority is above that of a father and a master, and the Sovereign has a greater right over the property of his subjects, where the public good is concerned, than the owners themselves have. And when the exigencies of the state require a supply, every man is more obliged to contribute towards it, than to satisfy his creditors.
VII. Aristotle distinguishes aptitude or capacity, by the name of worth or merit, and Michael of Ephesus, gives the epithet of SUITABLE or BECOMING to the equality established by this rule of merit.
VII. [Translator's note: The eighth Section is omitted, the greater part of it consisting of verbal criticism upon Aristotle's notions of geometrical and arithmetical justice; a discussion no way conducive to that clearness and simplicity, so necessary to every didactic treatise.]
IX. There is also a third signification of the word Right, which has the same meaning as Law, taken in its most extensive sense, to denote a rule of moral action, obliging us to do what is proper. We say OBLIGING us. For the best counsels or precepts, if they lay us under no obligation to obey them, cannot come under the denomination of law or right. Now as to permission, it is no act of the law, but only the silence of the law it however prohibits any one from impeding another in doing what the law permits. But we have said, the law obliges us to do what is proper, not simply what is just; because, under this notion, right belongs to the substance not only of justice, as we have explained it, but of all other virtues. Yet from giving the name of a RIGHT to that, which is PROPER, a more general acceptation of the word justice has been derived. The best division of right, in this general meaning, is to be found in Aristotle, who, defining one kind to be natural, and the other voluntary, calls it a LAWFUL RIGHT in the strictest sense of the word law; and some times an instituted right. The same difference is found among the Hebrews, who, by way of distinction, in speaking, call that natural right, PRECEPTS, and the voluntary right, STATUTES: the former of which the Septuagint call * 4 6 " ñ : " J " , and the latter X < J @ 8 V H .
X. Natural right is the dictate of right reason, shewing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature. The actions, upon which such a dictate is given, are either binding or unlawful in themselves, and therefore necessarily understood to be commanded or forbidden by God. This mark distinguishes natural right, not only from human law, but from the law, which God himself has been pleased to reveal, called, by some, the voluntary divine right, which does not command or forbid things in themselves either binding or unlawful, but makes them unlawful by its prohibition, and binding by its command. But, to understand natural right, we must observe that some things are said to belong to that right, not properly, but, as the schoolmen say, by way of accommodation. These are not repugnant to natural right, as we have already observed that those things are called JUST, in which there is no injustice. Some times also, by a wrong use of the word, those things which reason shews to be proper, or better than things of an opposite kind, although not binding, are said to belong to natural right.
We must farther remark, that natural right relates not only to those things that exist independent of the human will, but to many things, which necessarily follow the exercise of that will. Thus property, as now in use, was at first a creature of the human will. But, after it was established, one man was prohibited by the law of nature from seizing the property of another against his will. Wherefore, Paulus the Lawyer said, that theft is expressly forbidden by the law of nature. Ulpian condemns it as infamous in its own nature; to whose authority that of Euripides may be added, as may be seen in the verse of Helena:
"For God himself hates violence, and will not have us to grow rich by rapine, but by lawful gains. That abundance, which is the fruit of unrighteousness, is an abomination. The air is common to men, the earth also where every man, in the ample enjoyment of his possession, must refrain from doing violence or injury to that of another."
Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend. Because the things so expressed would have no true meaning, but imply a contradiction. Thus two and two must make four, nor is it possible to be otherwise; nor, again, can what is really evil not be evil. And this is Aristotle's meaning, when he says, that some things are no sooner named, than we discover their evil nature. For as the substance of things in their nature and existence depends upon nothing but themselves; so there are qualities inseparably connected with their being and essence. Of this kind is the evil of certain actions, compared with the nature of a reasonable being. Therefore God himself suffers his actions to be judged by this rule, as may be seen in the xviiith chap. of Gen. 25. Isa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. From. ii. 6., iii. 6. Yet it sometimes happens that, in those cases, which are decided by the law of nature, the undiscerning are imposed upon by an appearance of change. Whereas in reality there is no change in the unalterable law of nature, but only in the things appointed by it, and which are liable to variation. For example, if a creditor forgive me the debt, which I owe him, I am no longer bound to pay it, not because the law of nature has ceased to command the payment of a just debt, but because my debt, by a release, has ceased to be a debt. On this topic, Arrian in Epictetus argues rightly, that the borrowing of money is not the only requisite to make a debt, but there must be the additional circumstance of the loan remaining undischarged. Thus if God should command the life, or property of any one to be taken away, the act would not authorise murder or robbery, words which always include a crime. But that cannot be murder or robbery, which is done by the express command of Him, who is the sovereign Lord of our lives and of all things. There are also some things allowed by the law of nature, not absolutely, but according to a certain state of affairs. Thus, by the law of nature, before property was introduced, every one had a right to the use of whatever he found unoccupied; and, before laws were enacted, to avenge his personal injuries by force.
XI. The distinction found in the books of the Roman Law, assigning one unchangeable right to brutes in common with man, which in a more limited sense they call the law of nature, and appropriating another to men, which they frequently call the Law of Nations, is scarcely of any real use. For no beings, except those that can form general maxims, are capable of possessing a right, which Hesiod has placed in a clear point of view, observing "that the supreme Being has appointed laws for men; but permitted wild beasts, fishes, and birds to devour each other for food." For they have nothing like justice, the best gift, bestowed upon men.
Cicero, in his first book of offices, says, we do not talk of the justice of horses or lions. In conformity to which, Plutarch, in the life of Cato the elder, observes, that we are formed by nature to use law and justice towards men only. In addition to the above, Lactantius may be cited, who, in his fifth book, says that in all animals devoid of reason we see a natural bias of self-love. For they hurt others to benefit themselves; because they do not know the evil of doing willful hurt. But it is not so with man, who, possessing the knowledge of good and evil, refrains, even with inconvenience to himself, from doing hurt. Polybius, relating the manner in which men first entered into society, concludes, that the injuries done to parents or benefactors inevitably provoke the indignation of mankind, giving an additional reason, that as understanding and reflection form the great difference between men and other animals, it is evident they cannot transgress the bounds of that difference like other animals, without exciting universal abhorrence of their conduct. But if ever justice is attributed to brutes, it is done improperly, from some shadow and trace of reason they may possess. But it is not material to the nature of right, whether the actions appointed by the law of nature, such as the care of our offspring, are common to us with other animals or not, or, like the worship of God, are peculiar to man.
XII. The existence of the Law of Nature is proved by two kinds of argument, a priori, and a posteriori, the former a more abstruse, and the latter a more popular method of proof. We are said to reason a priori, when we show the agreement or disagreement of any thing with a reasonable and social nature; but a posteriori, when without absolute proof, but only upon probability, any thing is inferred to accord with the law of nature, because it is received as such among all, or at least the more civilized nations. For a general effect can only arise from a general cause. Now scarce any other cause can be assigned for so general an opinion, but the common sense, as it is called, of mankind. There is a sentence of Hesiod that has been much praised, that opinions which have prevailed amongst many nations, must have some foundation. Heraclitus, establishing common reason as the best criterion of truth, says, those things are certain which generally appear so. Among other authorities, we may quote Aristotle, who says it is a strong proof in our favour, when all appear to agree with what we say, and Cicero maintains that the con. sent of all nations in any case is to be admitted for the law of nature. Seneca is of the same opinion, any thing, says he, appearing the same to all men is a proof of its truth. Quintilian says, we hold those things to be true, in which all men agree. We have called them the more civilized nations, and not without reason. For, as Porphyry well observes, some nations are so strange that no fair judgment of human nature can be formed from them, for it would be erroneous. Andronicus, the Rhodian says, that with men of a right and sound understanding, natural justice is unchangeable. Nor does it alter the case, though men of disordered and perverted minds think otherwise. For he who should deny that honey is sweet, because it appears not so to men of a distempered taste, would be wrong. Plutarch too agrees entirely with what has been said, as appears from a passage in his life of Pompey, affirming that man neither was, nor is, by nature, a wild unsociable creature. But it is the corruption of his nature which makes him so: yet by acquiring new habits, by changing his place, and way of living, he may be reclaimed to his original gentleness. Aristotle, taking a description of man from his peculiar qualities, makes him an animal of a gentle nature, and in another part of his works, he observes, that in considering the nature of man, we are to take our likeness from nature in its pure, and not in its corrupt state.
XIII. It has been already remarked, that there is another kind of right, which is the voluntary right, deriving its origin from the will, and is either human or divine.
XIV. We will begin with the human as more generally known. Now this is either a civil right, or a right more or less extensive than the civil right. The civil right is that which is derived from the civil power. The civil power is the sovereign power of the state. A state is a perfect body of free men, united together in order to enjoy common rights and advantages. The less extensive right, and not derived from the civil power itself, although subject to it, is various, comprehending the authority of parents over children, masters over servants, and the like. But the law of nations is a more extensive right, deriving its authority from the consent of all, or at least of many nations.
It was proper to add MANY, because scarce any right can be found common to all nations, except the law of nature, which itself too is generally called the law of nations. Nay, frequently in one part of the world, that is held for the law of nations, which is not so in another. Now this law of nations is proved in the same manner as the unwritten civil law, and that is by the continual experience and testimony of the Sages of the Law. For this law, as Dio Chrysostom well observes, is the discoveries made by experience and time. And in this we derive great advantage from the writings of eminent historians.
XV. The very meaning of the words divine voluntary right, shows that it springs from the divine will, by which it is distinguished from natural law, which, it has already been observed, is called divine also. This law admits of what Anaxarchus said, as Plutarch relates in the life of Alexander, though without sufficient accuracy, that God does not will a thing, because it is just, but that it is just, or binding, because God wills it. Now this law was given either to mankind in general, or to one particular people. We find three periods, at which it was given by God to the human race, the first of which was immediately after the creation of man, the second upon the restoration of mankind after the flood, and the third upon that more glorious restoration through Jesus Christ. These three laws undoubtedly bind all men, as soon as they come to a sufficient knowledge of them.
XVI. Of all nations there is but one, to which God particularly vouchsafed to give laws, and that was the people of Israel, whom Moses thus addresses in the fourth Chap. of Deuteronomy, ver. 7. "What nation is there so great who hath God so nigh unto them, as the Lord our God is in all things that we call upon him for? And what nation is there so great, who have statutes and judgments so righteous, as all this law, which I set before you this day!" And the Psalmist in the cxlvii. Psalm, "God shewed his word unto Jacob, his statutes and ordinances unto Israel. He hath not dealt so with any nation, and as for his judgments they have not known them." Nor can we doubt but that those Jews, with whom we may class Tryphon in his dispute with Justin, are mistaken, who suppose that even strangers, if they wish to be saved, must submit to the yoke of the Mosaic Law. For a law does not bind those, to whom it has not been given. But it speaks personally to those, who are immediately under it. Hear O Israel, and we read everywhere of the covenant made with them, by which they became the peculiar people of God. Maimonides acknowledges and proves the truth of this from the xxxiii. Chapter and fourth verse of Deuteronomy.
But among the Hebrews themselves there were always living some strangers, persons devout and fearing God, such was the Syrophoenician woman, mentioned in the Gospel of St. Matthew, xv. zz. Cornelius the Centurion. Acts. x. the devout Greeks, Acts xviii. 6. Sojourners, or strangers, also are mentioned. Levit. xxv. 47. These, as the Hebrew Rabbis themselves inform us, were obliged to observe the laws given to Adam and Noah, to abstain from idols and blood, and other things, that were prohibited; but not in the same manner to observe the laws peculiar to the people of Israel. Therefore though the Israelites were not allowed to eat the flesh of a beast, that had died a natural death; yet the strangers living among them were permitted. Deut. xiv. 21. Except in some particular laws, where it was expressly said, that strangers no less than the native inhabitants were obliged to observe them. Strangers also, who came from other countries, and were not subject to the Jewish laws, might worship God in the temple of Jerusalem, but standing in a place separate and distinct from the Israelites. I. Kings viii. 41. 2 Mac. iii. 35. John xii 20. Acts viii. 27. Nor did Elisha ever signify to Naaman the Syrian, nor Jonas to the Ninevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the Tyrians, the Moabites, the Egyptians, to whom they wrote, that it was necessary for them to adopt the Mosaic Law.
What has been said of the whole law of Moses applies to circumcision, which was a kind of introduction to the law. Yet with this difference that the Israelites alone were bound by the Mosaic Law, but the whole posterity of Abraham by the law of circumcision. From hence we are informed by Jewish and Greek Historians, that the Idumaeans, or Edomites were compelled by the Jews to be circumcised. Wherefore there is reason to believe that the numerous nations, who, besides the Israelites, practiced circumcision, and who are mentioned by Herodotus, Strabo, Philo, Justin, Origen, Clemens, Alexandrinus, Epiphanius, and Jerom, were descended from Ishmael, Esau, or the posterity of Keturah. But what St. Paul says, From. ii. I4.. holds good of all other nations; that the Gentiles, not having the law, yet doing by nature the things contained in the law, become a law to themselves. Here the word nature may be taken for the primitive source of moral obligation; or, referring it to the preceding parts of the Epistle, it may signify the knowledge, which the Gentiles acquired of themselves without instruction, in opposition to the knowledge derived to the Jews from the law, which was instilled into them from their cradle, and almost from their birth. "So the Gentiles show the work, or the moral precepts of the law, written in their hearts, their consciences also bearing witness, and their thoughts the mean while accusing or else excusing one another." And again in the 26th ver.; "If the uncircumcision keep the righteousness of the law, shall not his uncircumcision be counted for circumcision?" Therefore Ananias, the Jew, as we find in the history of Josephus, very properly taught Tzates, or as Tacitus calls him, Ezates, the Adiabenian, that even without circumcision, God might be rightly worshipped and rendered propitious. For though many strangers were circumcised, among the Jews, and by circumcision bound themselves to observe the law, as St. Paul explains it in Gal. v. 3.; they did it partly to obtain the freedom of the country; for proselytes called by the Hebrews, proselytes of righteousness, enjoyed equal privileges with the Israelites. Num. xv. : and partly to obtain a share in those promises, which were not common to mankind, but peculiar to the Jewish people, although it cannot be denied, that in later ages an erroneous opinion prevailed, that there was no salvation out of the Jewish pale. Hence we may infer, that we are bound by no part of the Levitical law, strictly and properly so called; because any obligation, beyond that arising from the law of nature, must proceed from the express will of the law-giver. Now it cannot be discovered by any proof, that God intended any other people, but the Israelites to be bound by that law. Therefore with respect to ourselves, we have no occasion to prove an abrogation of that law; for it could never be abrogated with respect to those, whom it never bound. But the Israelites were released from the ceremonial part, as soon as the law of the Gospel was proclaimed; a clear revelation of which was made to one of the Apostles, Acts x. I5. And the other parts of the Mosaic law lost their peculiar distinction, when the Jews ceased to be a people by the desolation and destruction of their city without any hopes of restoration. Indeed it was not a release from the law of Moses that we, who were strangers to the Commonwealth of Israel, obtained by the coming of Christ. But as before that time, our hopes in the goodness of God were obscure and uncertain, we gained the assurance of an express covenant, that we should be united in one Church with the seed of Israel, the children of the patriarchs, their law, that was the wall of separation between us, being broken down. Eph. ii. I4.
XVII. Since then the law given by Moses imposes no direct obligation upon us, as it has been already shown, let us consider whether it has any other use both in this inquiry into the rights of war, and in other questions of the same kind. In the first place, the Mosaic law shows that what it enjoins is not contrary to the law of nature. For since the law of nature is perpetual and unchangeable, nothing contradictory to it could be commanded by God, who is never unjust. Besides the law of Moses is called in the xix. Psalm an undefiled and right law, and St. Paul, From. vii. I2, describes it to be holy, just, and good. Its precepts are here spoken of, for its permissions require a more distinct discussion. For the bare permission, signifying the removal of an impediment, or prohibition, has no relation to the present subject. A positive, legal permission is either full, granting us power to do some particular act without the least restriction, or less full, only allowing men impunity for certain actions, and a right to do them without molestation from others. From the permission of the former kind no less than from a positive precept, it follows that what the law allows, is not contrary to the law of nature. But with regard to the latter kind of permission, allowing impunity for certain acts, but not expressly authorizing them, we cannot so readily conclude those acts to be conformable to the law of nature. Because where the words of permission are ambiguous in their meaning, it is better for us to interpret according to the established law of nature, what kind of permission it is, than from our conception of its expediency to conclude it conformable to the laws of nature. Connected with this first observation there is another, expressive of the power that obtains among Christian Princes to enact laws of the same import with those given by Moses, except such as related entirely to the time of the expected Messiah, and the Gospel then unrevealed, or where Christ himself has in a general or particular manner established any thing to the contrary. For except in these three cases, no reason can be devised, why any thing established by the law of Moses should be now unlawful. In the third place it may be observed, that whatever the law of Moses enjoined relating to those virtues, which Christ required of his disciples, should be fulfilled by Christians now, in a greater degree, from their superior knowledge, and higher motives. Thus the virtues of humility, patience, and charity are required of Christians in a more perfect manner than of the Jews under the Mosaic dispensation, because the promises of heaven are more clearly laid before us in the Gospel. Hence the old law, when compared with the Gospel, is said to have been neither perfect nor faultless, and Christ is said to be the end of the law, and the law our schoolmaster to bring us to Christ. Thus the old law respecting the Sabbath, and the law respecting tithes, show that Christians are bound to devote not less than a seventh portion of their time to divine worship, nor less than a tenth of their fruits to maintain those who are employed in holy things, or to other pious uses.
CHAPTER 2: Inquiry Into the Lawfulness of War
Reasons proving the lawfulness of War--Proofs from History--Proofs from general consent--The Law of Nature proved not repugnant to War--War not condemned by the voluntary Divine Law preceding the Gospel--Objections answered--Review of the question whether War be contrary to the Law of the Gospel--Arguments from Scripture for the negative Opinions--Answer to the Arguments taken from Scripture for the affirmative--The opinions of the primitive Christians on the subject examined.
I. AFTER examining the sources of right, the first and most general question that occurs, is whether any war is just, or if it is ever lawful to make war. But this question like many others that follow, must in the first place be compared with the rights of nature. Cicero in the third book of his Bounds of Good and Evil, and in other parts of his works, proves with great erudition from the writings of the Stoics, that there are certain first principles of nature, called by the Greeks the first natural impressions, which are succeeded by other principles of obligation superior even to the first impressions themselves. He calls the care, which every animal, from the moment of its birth, feels for itself and the preservation of its condition, its abhorrence of destruction, and of every thing that threatens death, a principle of nature. Hence, he says, it happens, that if left to his own choice, every man would prefer a sound and perfect to a mutilated and deformed body. So that preserving ourselves in a natural state, and holding to every thing conformable, and averting every thing repugnant to nature is the first duty.
But from the knowledge of these principles, a notion arises of their being agreeable to reason, that part of a man, which is superior to the body. Now that agreement with reason, which is the basis of propriety, should have more weight than the impulse of appetite; because the principles of nature recommend right reason as a rule that ought to be of higher value than bare instinct. As the truth of this is easily assented to by all men of sound judgment without any other demonstration, it follows that in inquiring into the laws of nature the first object of consideration is, what is agreeable to those principles of nature, and then we come to the rules, which, though arising only out of the former, are of higher dignity, and not only to be embraced, when offered, but pursued by all the means in our power.
This last principle, which is called propriety, from its fitness, according to the various things on which it turns, sometimes is limited to a very narrow point, the least departure from which is a deviation into vice; sometimes it allows a wider scope, so that some actions, even laudable in themselves, may be omitted or varied without crime. In this case there is not an immediate distinction between right and wrong; the shades are gradual, and their termination unperceived; not like a direct contrast, where the opposition is immediately seen, and the first step is a transgression of the fixed bounds.
The general object of divine and human laws is to give the authority of obligation to what was only laudable in itself. It has been said above that an investigation of the laws of nature implies an inquiry, whether any particular action may be done without injustice: now by an act of injustice is understood that, which necessarily has in it any thing repugnant to the nature of a reasonable and social being. So far from any thing in the principles of nature being repugnant to war, every part of them indeed rather favours it. For the preservation of our lives and persons, which is the end of war, and the possession or acquirement of things necessary and useful to life is most suitable to those principles of nature, and to use force, if necessary, for those occasions, is no way dissonant to the principles of nature, since all animals are endowed with natural strength, sufficient to assist and defend themselves.
Xenophon says, that every animal knows a certain method of fighting without any other instructor than nature. In a fragment of Ovid's, called the Art of Fishery, it is remarked, that all animals know their enemy and his means of defence, and the strength and measure of their own weapons. Horace has said, "the wolf attacks with its teeth, the bull with its horns, and whence is this knowledge derived but from instinct?" On this subject Lucretius enlarges, observing that "every creature knows its own powers. The calf butts with its forehead, before its horns appear, and strikes with all imaginable fury." On which Galen expresses himself in the following manner, "every animal appears to defend itself with that part of its body, in which it excels others. The calf butts with its head before its horns have grown, and the colt strikes with its heel before its hoofs are hard, as the young dog attempts to bite before his teeth are strong." The same writer in describing the use of different parts of the body, says, "that man is a creature formed for peace and war. His armour forms not an immediate part of his body; but he has hands fit for preparing and handling arms, and we see infants using them spontaneously, without being taught to do so." Aristotle in the 4th book, and tenth chapter of the history of animals, says, "that the hand serves man for a spear, a sword, or any arms whatever, because it can hold and wield them." Now right reason and the nature of society which claims the second, and indeed more important place in this inquiry, prohibit not all force, but only that which is repugnant to society, by depriving another of his right. For the end of society is to form a common and united aid to preserve to every one his own. Which may easily be understood to have obtained, before what is now called property was introduced. For the free use of life and limbs was so much the right of every one, that it could not be infringed or attacked without injustice. So the use of the common productions of nature was the right of the first occupier, and for any one to rob him of that was manifest injustice. This may be more easily understood, since law and custom have established property under its present form. Tully has expressed this in the third book of his Offices in the following words, "if every member could have separate feeling, and imagine it could derive vigour from engrossing the strength of a neighboring part of the body, the whole frame would languish and perish. In the same manner if every one of us, for his own advantage, might rob another of what he pleased, there would be a total overthrow of human society and intercourse. For though it is allowed by nature for every one to give the preference to himself before another in the enjoyment of life and necessaries, yet she does not permit us to increase our means and riches by the spoils of others." It is not therefore contrary to the nature of society to provide and consult for ourselves, if another's right is not injured; the force therefore, which inviolably abstains from touching the rights of others, is not unjust. For as the same Cicero observes some where in his Epistles, that as there are two modes of contending, the one by argument, and the other by force, and as the former is peculiar to man, and the latter common to him with the brute creation, we must have recourse to the latter, when it is impossible to use the former. And again, what can be opposed to force, but force? Ulpian observes that Cassius says, it is lawful to repel force by force, and it is a right apparently provided by nature to repel arms with arms, with whom Ovid agrees, observing that the laws permit us to take up arms against those that bear them.
II. The observation that all war is not repugnant to the law of nature, may be more amply proved from sacred history. For when Abraham with his servants and confederates had gained a victory, by force of arms, over the four Kings, who had plundered Sodom, God approved of his act by the mouth of his priest Melchisedech, who said to him, "Blessed be the most high God, who hath delivered thine enemies into thine hand." Gen. xiv. 20. Now Abraham had taken up arms, as appears from the history, without any special command from God. But this man, no less eminent for sanctity than wisdom, felt himself authorized by the law of nature, as it is admitted by the evidence of Berosus, and Orpheus, who were strangers.
There is no occasion to appeal to the history of the seven nations, whom God delivered up into the hands of the Israelites to be destroyed. For there was a special command to execute the judgment of God upon nations guilty of the greatest crimes. From whence these wars are literally styled in scripture, Battles of the Lord, as undertaken, not by human will, but by divine appointment. The xvii. chapter of Exodus supplies a passage more to the purpose, relating the overthrow which the Israelites, conducted by Moses and Joshua, made of the Amalekites. In this act, there was no express commission from God, but only an approval after it was done. But in the xix. chap. of Deut. ver. I0, I5. God has prescribed general and standing laws to his people on the manner of making war, by this circumstance shewing that a war may be just without any; express commandment from him. Because in the same passage, a plain distinction is made between the case of the seven nations and that of others. And as there is no special edict prescribing the just causes for which war may be undertaken, the determination of them is left to the discovery of natural reason. Of this kind is the war of Jephthah against the Ammonites, in defence of their borders. Judd. xi. and the war of David against the same people for having violated the rights of his Ambassadors. 2 Sam. x. To the preceding observations may be added, what the inspired writer of the Epistle to the Hebrews says of Gideon, Barack, Sampson, Jephthah, David, Samuel, and others, who by faith made war upon kingdoms, prevailed in war and put whole armies of their enemies to flight. Heb. xi. 33, 34. The whole tenor of this passage shews, that the word faith implies a persuasion, that what they did was believed to be agreeable to the will of God. In the same manner, David is said, by a woman distinguished for her wisdom, I Sam. xxv. 28. to fight the battles of the Lord, that is to make lawful and just wars.
III. Proofs of what has been advanced, may be drawn also from the consent of all, especially, of the wisest nations. There is a celebrated passage in Cicero's speech for Milo, in which, justifying recourse to force in defence of life, he bears ample testimony to the feelings of nature, who has given us this law, which is not written, but innate, which we have not received by instruction, hearing or reading, but the elements of it have been engraven in our hearts and minds with her own hand : a law which is not the effect of habit and acquirement, but forms a part in the original complexion of our frame: so that if our lives are threatened with assassination or open violence from the hands of robbers or enemies, any means of defence would be allowed and laudable. He proceeds, reason has taught this to the learned, necessity to the barbarians, custom to nations, and nature herself to wild beasts, to use every possible means of repelling force offered to their bodies, their limbs and their lives. Caius and Lawyer says, natural reason permits us to defend ourselves against dangers. And Florentinus, another legal authority, maintains, that whatever any one does in defence of his person ought to be esteemed right. Josephus observes, that the love of life is a law of nature strongly implanted in all creatures, and therefore we look upon those as enemies, who would openly deprive us of it.
This principle is founded on reasons of equity, so evident, that even in the brute creation, who have no idea of right, we make a distinction between attack and defence. For when Ulpian had said, that an animal without knowledge, that is without the use of reason, could not possibly do wrong, he immediately adds, that when two animals fight, if one kills the other, the distinction of Quintius Mutius must be admitted, that if the aggressor were killed no damages could be recovered; but if the other, which was attacked, an action might be maintained. There is a passage in Pliny, which will serve for an explanation of this, he say s that the fiercest lions do not fight with each other, nor do serpents bite serpents. But if any violence is done to the tamest of them, they are roused, and upon receiving any hurt, will defend themselves with the greatest alacrity and vigour.
IV. From the law of nature then which may also be called he law of nations, it is evident that all kinds of war are not to be condemned. In the same manner, all history and the laws of manners of every people sufficiently inform us, that war is not condemned by the voluntary law of nations. Indeed Hermogenianus has said, that wars were introduced by the law of nations, a passage which aught to be explained somewhat differently from the general interpretation given to it. The meaning of it is, that certain formalities, attending war, were introduced by the law of nations, which formalities were necessary to secure the peculiar privileges arising out of the law. From hence a distinction, which there will be occasion to use hereafter, between a war with the usual formalities oŁ the law of nations, which is called just or perfect, and an informal war, which does not for that reason cease to be just, or agreeable to right. For some wars, when made upon just grounds, though not exactly conformable, yet are not repugnant to the law, as will be explained more fully hereafter. By the law of the nations, says Livy, provision is made to repel force by arms; and Florentinus declares, that the law of nations allows us to repel violence and injury, in order to protect our persons.
V. A greater difficulty occurs respecting the divine voluntary law. Nor is there any force in the objection that as the law of nature is unchangeable, nothing can be appointed even by God himself contrary to it. For this is true only in those things, which the law of nature positively forbids or commands; no 'n those which are tacitly permitted by the same law. For acts of that kind, not falling strictly within the general rule, but being exceptions to the law of nature, may be either forbidden or commanded. The first objection usually made against the lawfulness of war is taken from the law given to Noah and his posterity, Gen. ix. 5, 6, where God thus speaks, "Surely the blood of your lives will I require; at the hand of every beast will I require it, and at the hand of every man ; at the hand of every man's brother will I require the life of man. Whoever sheds man's blood, by man shall his blood be shed; for in the image of God made he man." Here some take the phrase of requiring blood, in the most general sense, and the other part, that blood shall be shed in its turn, they consider as a bare threat, and not an approbation; neither of which acceptations can be admitted. For the prohibition of shedding blood extends not beyond the law itself, which declares, THOUS SHALT NOT KILL; but passes no condemnation upon capital punishments or wars undertaken by public authority.
Neither the law of Moses, nor that given to Noah established any thing new, they were only a declaratory repetition of the law of nature, that had been obliterated by depraved custom. So that the shedding of blood in a criminal and wanton manner is the only act prohibited by those commandments. Thus every act of homicide does not amount to murder, but only that, which is committed with a willful and malicious intention to destroy the life of an innocent person. As to what follows about blood .being shed in return for blood, it seems to imply not a mere act of personal revenge, but the deliberate exercise of a perfect right, which may be thus explained; it is not unjust, according to the principles of nature that any one should suffer in proportion to the evil he has done, conformably to the judicial maxim of Rhadamanthus, that if any one himself suffers what he has done, it is but just and right. The same opinion is thus expressed by Seneca the father; "it is but a just retaliation for any one to suffer in his own person the evil which he intended to inflict upon another." From a sense of this natural justice, Cain knowing himself guilty of his brother's blood said, "whosoever finds me shall kill me."
But as in those early times, when men were few, and aggressions rare, there was less occasion for examples, God restrained by an express commandment the impulse of nature which appeared lawful, he forbad any one to kill the murderer, at the same time prohibiting all intercourse with him, even so far as not to touch him.
Plato has established this in his laws, and the same rule prevailed in Greece, as appears from the following passage in Euripides, "our fathers of old did well in banishing from their intercourse and sight any one that had shed another's blood; imposing banishment by way of atonement, rather than inflicting death." We find Thucydides of the same opinion, "that anciently lighter punishments were inflicted for the greatest crimes; but in process of time, as those penalties came to be despised, legislators were obliged to have recourse to death in certain cases." We may add to the above instances the remark of Lactantius, that as yet it appeared a sin to punish even the most wicked men with death.
The conjecture of the divine will taken from the remarkable instance of Cain, whom no one was permitted to kill passed into a law, so that Lanech, having perpetrated a similar deed, promised himself impunity from this example.-Gen. iv. 24.
But as before the deluge, in the time of the Giants, the practice of frequent and wanton murders had prevailed; upon the renewal of the human race, after the deluge, that the same evil custom might not be established, God thought proper to restrain it by severer means. The lenity of former ages was laid aside, and the divine authority gave a sanction to the precepts of natural justice, that whoever killed a murderer should be innocent. After tribunals were erected, the power over life was, for the very best reasons, conferred upon the judges alone. Still some traces of ancient manners remained in the right which was granted, after the introduction o the Mosaic Law, to the nearest in blood to the person killed.
This interpretation is justified by the authority of Abraham, who, with a perfect knowledge of the law given to Noah, took arms against the four Kings, fully persuaded that he was doing nothing in violation of that law. In the same manner Moses ordered the people to fight against Amalekites, who attacked them ; following in this case the dictates of nature, for he appears to have had no special communication with God. Exod. xvii. 9. Besides, we find that capital punishments were inflicted upon other criminals, as well as murderers, not only among the Gentiles, but among those who had been impressed with the most pious rules and opinions, even the Patriarchs themselves. Gen. xxxviii. 24.
Indeed upon comparing the divine will with the light of nature, it was concluded, that it seemed conformable to justice, that other crimes of great enormity should be subject to the same punishment as that of murder. For there are some rights, such as those of reputation, chastity, conjugal fidelity, submission of subjects to their princes, all of which are esteemed of equal value with life itself, because on the preservation of these the peace and comfort of life depend. The violation of any of those rights is little less than murder itself.
Here may be applied the old tradition found among the Jews, that there were many laws, which were not ALL mentioned by Moses, given by God to the sons of Noah as it was sufficient for his purpose, that they should afterwards be comprehended in the peculiar laws of the Hebrews. Thus it appears from xviii. chap. of Leviticus, that there was an ancient law against incestuous marriages, though not mentioned by Moses in its proper place. Now among the commandments given by God to the children of Noah, it is said, that death was expressly declared to be the punishment not only for murder, but for adultery, incest, and robbery, which is confirmed by the words of Job xxxi. II. The law of Moses too, for the sanction of capital punishments, gives reasons which operate no less with other nations, than with the Jewish people. Levit. xviii. z5-3o. Psa. ci. 5. Prov. xx. 8. And particularly respecting murder it is said, the land cannot be cleansed unless the blood of the murderer be shed. Numb. xxv. 3I-33. Besides, it were absurd to suppose that the Jewish people were indulged with the privilege of maintaining the public safety, and that of individuals by capital punishments, and asserting their rights by war, and that other kings and nations were not allowed the same powers. Nor do we find that those kings or nations were forewarned by the Prophets, that the use of capital punishments, and that all wars, were condemned by God in the same manner as they were admonished of all other sins. On the other hand, can any one doubt, as the law of Moses bore such an express image of the divine will respecting criminal justice, whether other nations would not have acted wisely in adopting it for their example? It is certain that the Greeks, and the Athenians in particular did so. From hence came the close resemblance which the Jewish bore to the old Athenian law, and to that of the twelve tables of Rome. Enough has been said, to shew that the law given to Noah cannot bear the interpretation of those, who derive from it their arguments against the lawfulness of all war.
VI. The arguments against the lawfulness of war, drawn from the Gospel, are more specious. In examining which it will not be necessary to assume, as many do, that the Gospel contains nothing more than the law of nature, except the rules of faith and the Sacraments: an assumption, which in its general acceptation is by no means true. It may readily be admitted, that nothing inconsistent with natural justice is enjoined in the gospel, yet it can never be allowed, that the laws of Christ do not impose duties upon us, above those required by the law of nature. And those, who think otherwise, strain their arguments to prove that many practices forbidden by the gospel, as concubinage, divorce, polygamy, were made offences by the law of nature. The light of nature might point out the HONOUR of abstaining from such practices, but the SINFULNESS of them could not have been discovered without a revelation of the will of God. Who for instance would say, that the Christian precept of laying down our lives for others was an obligation of the law of nature? I John iii. I6. It is said by Justin the Martyr, that to live according to the bare law of nature is not the character of a true believer. Neither can we follow those, who, adopting another meaning of no inconsiderable import, construe the precept delivered by Christ in his sermon on the mount, into nothing more than an interpretation of the Mosaic Law. For the words, "you have heard it was said to them of OLD, but I say to you," which are so often repeated, imply something else. Those of old were no other than contemporaries of Moses: for what is there repeated as said to those of OLD are not the words of the teachers of the law, but of Moses, either LITERALLY, or in THEIR meaning. They are cited by our Saviour as his express words, not as interpretations of them: "Thou shalt not kill," Exod. xx. whoever killeth shall be in danger of Judgment, Levit. xxi. az. Numb.xxxv. I6, I7, 30. "Thou shalt not commit adultery," Exod. xx. "whosoever shall put away his wife, let him give her a writing of divorcement." Deut. Xxiv, I. "Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths." Exod. xx. 7. Numb. xxx 2. "An eye for an eye, and a tooth for a tooth," may be demanded in justice." Levit. xxxiv. 20. Deut. xix. 2I. "Thou shalt love thy neighbour," that is, an Israelite. Levit. xix. I8. "and thou shalt hate thine enemy," that is, any one of the seven nations to whom friendship or compassion was forbidden to be shewn. Exod. xxxiv. II. Deut. vii. I. To these may be added the Amalekites, with whom the Israelites were commanded to maintain irreconcilable war. Exod. xxvii. Ig. Deut. xxv. I9.
But to understand the words of our Saviour, we must observe that the law of Moses is taken in a double sense, either as containing some principles in common with human laws, such as imposing restraint upon human crimes by the dread of exemplary punishments. Heb. ii. 2. And in this manner maintaining civil society among the Jewish people: for which reason it is called, Heb. vii. I6, the law of a carnal commandment, and From. iii. I7. the law of works: or it may be taken in another sense, comprehending the peculiar sanctions of a divine law, requiring purity of mind, and certain actions, which might be omitted without temporal punishments. In this sense it is called a spiritual law, giving life to the soul. The teachers of the law, and the Pharisees considering the first part as sufficient neglected to instruct the people in the second and more important branch, deeming it superfluous. The truth of this may be proved, not only from our own writings, but from Josephus also, and the Jewish Rabbies. Respecting this second part we may observe, that the virtues which are required of Christians, are either recommended or enjoined to the Hebrews, but not enjoined in the same degree and extent as to Christians. Now in both these senses Christ opposes his own precepts to the old law. From whence it is clear, that his words contain more than a bare interpretation of the Mosaic law. These observations apply not only to the question immediately in hand, but to many others; that we may not rest upon the authority of the Mosaic law farther than is right.
VII. Omitting therefore the less satisfactory proofs, as a leading point of evidence to shew that the right of war is not taken away by the law of the gospel, that passage in St. Paul's Epistle to Timothy may be referred to, where the Apostle says, "I exhort therefore that, first of all, supplications, prayers, intercessions, and giving of thanks be made for all men; for Kings, and for all that are in authority, that we may lead a quiet and peaceable life, in all godliness and honesty; for this is good and acceptable in the sight of God our Saviour, who would have all men to be saved, and to come to the knowledge of the truth." I Eph. ii. I, 2, 3. From this passage, the following conclusions may be drawn; in the first place, that Christian piety in kings is acceptable to God, that their profession of Christianity does not abridge their rights of sovereignty. Justin the Martyr has said, "that in our prayers for Kings, we should beg that they may unite a spirit of wisdom with their royal power," and in the book called the Constitutions of Clement, the Church prays for Christian rulers, and that Christian Princes may perform an acceptable service to God, by securing to other Christians the enjoyment of quiet lives. The manner in which the Sovereign secures this important end, is explained in another passage from the same Apostle. From. xiii. 4. "He is the minister of God to thee for good. But if thou do evil, fear, for he beareth not the sword in vain; for he is the minister of God, an avenger to execute wrath upon them, that do evil." By the right of the sword is understood the exercise of every kind of restraint, in the sense adopted by the Lawyers, not only over offenders amongst his own people, but against neighboring nations, who violate his own and his people's rights. To clear up this point, we may refer to the second Psalm, which although it applies literally to David, yet in its more full and perfect sense relates to Christ, which may be seen by consulting other parts of scripture. For instance, Acts iv. 25. xiii. 33. For that Psalm exhorts all kings to worship the son of God, shewing themselves, as kings, to be his ministers, which may be explained by the words of St. Augustine, who says, "In this, kings, in their royal capacity, serve God according to the divine commandment, if they promote what is good, and prohibit what is evil in their kingdoms, not only relating to human society, but also respecting religion." And in another place the same writer says, "How can kings serve the Lord in fear, unless they can prohibit and punish with due severity offences against the law of God? For the capacities in which they serve God, as individuals, and as kings, are very different. In this respect they serve the Lord, as kings, when they promote his service by means which they could not use without regal power.
The same part of the Apostle's writings supplies us with a second argument, where the higher powers, meaning kings, are said to be from God, and are called the ordinance of God; from whence it is plainly inferred that we are to honour and obey the, from motives of conscience, and that every one who resists him is resisting God. If the word ordinance meant nothing more than a bare permission, that obedience which the Apostle so strenuously enjoins would only have the force of an imperfect obligation. But as the word ordinance, in the original, implies an express commandment and appointment, and as all parts of the revealed will of God are consistent with each other, it follows that the obedience of subjects to sovereigns is a duty of supreme obligation. Nor is the argument at all weakened by its being- said, that the Sovereigns at the time when St. Paul wrote, were not Christians. For it is not universally true, as Sergius Paulus, the deputy governor of Cyprus, had long before professed the Christian religion. Acts xiii. I 2. There is no occasion to mention the tradition respecting Abgarus the King of Edessa's Epistle to our Saviour; a tradition mingled with falsehood, though, in some measure founded upon truth. For the question did not turn upon the characters of the Princes, whether they were godly or not, but whether THEIR holding the kingly office was repugnant to the law of God. This St. Paul denies, maintaining that the kingly office, even under all circumstances, was appointed by God, therefore it ought to be honoured from motives of conscience, which, properly speaking, are under the controul of God alone. So that Nero, and King Agrippa whom Paul so earnestly entreats to become a Christian, might have embraced Christianity, and still retained, the one his regal, and the other his imperial authority, which could not be exercised without the power of the sword. As the legal sacrifices might formerly be performed by wicked Priests; in the same manner regal power would retain its indelible sanctity, though in the hands of an ungodly man.
A third argument is derived from the words of John the Baptist, who, at a time when many thousands of the Jews served in the Roman armies, as appears from the testimony of Josephus and others, being seriously asked by the soldiers, what they should do to avoid the wrath of God, did not command them to renounce their military calling, which he ought to have done, had it been inconsistent with the law and will of God, but to abstain from violence, extortion, and false accusation, and to be content with their wages. In reply to these words of the Baptist, so plainly giving authority to the military profession, many observed that the injunction of the Baptist is so widely different from the precepts of Christ, that HE seemed to preach one doctrine and our LORD another. Which is by no means admissible, for the following reasons. Both our Saviour and the Baptist made repentance the substance of their doctrine; for the kingdom of heaven was at hand. By the Kingdom of Heaven is meant a new law, as the Hebrews used to give the name of Kingdom to their law. Christ himself says the Kingdom of Heaven began to suffer violence from the days of John the Baptist. Matt. Xi. I2. John is said to have preached the baptism of repentance for the remission of sins. Mark i. 4. The Apostles are said to have done the same in the name of Christ. Acts xi. 38. John requires fruits worthy of repentance, and threatens destruction to those, who do not produce them. Matt. Iii. 8, I0. He also requires works of charity above the law. Luke iii. 2. The law is said to have continued till John, that is, a more perfect law is said to have commenced form his instruction. He was called greater than the prophets, and declared to be one sent to give the knowledge of salvation to the people by announcing the gospel. He makes no distinction between himself and Jesus on the score of doctrine, only ascribing pre-eminence to Christ as the promised Messiah, the Lord of the Kingdom of Heaven, who would give the power of the holy spirit to those, who believed in him. In short, the dawning rudiments of knowledge, which proceeded from the forerunner, were more distinctly unfolded and cleared up, by Christ himself, the light of the world.
There is a fourth argument, which seems to have no little weight, proceeding upon the supposition, that if the right of inflicting capital punishments were abolished, and princes were deprived for the power of the sword to protect their subjects against the violence of murderers and robbers, wickedness would triumphantly prevail, and the world would be deluged with crimes, which, even under the best established governments, are with so much difficulty prevented or restrained. If then it had been the intention of Christ to introduce such an order of things as had never been heard of, he would undoubtedly by the most express and particular words, have condemned all capital punishments, and all wars, which we never read that he did. For the arguments, brought in favor of such an opinion, are for the most part very indefinite and obscure. Now both justice and common sense require such general expressions to be taken in a limited acceptation, and allow us, in explaining ambiguous words, to depart from their literal meaning, where our strictly adhering to it would lead to manifest inconvenience and detriment.
There is a fifth argument, maintaining that no proof can be adduced that the judicial part of the Mosaic Law, inflicting sentence of death, ever ceased to be in force, till the city of Jerusalem, and the civil polity of the Jews were utterly destroyed, without hopes of restoration. For in the Mosaic dispensation no assignable term is named for the duration of the law; nor do Christ and his Apostles ever speak of its abolition, except in allusion to the overthrow of the Jewish state. Indeed on the contrary, St. Paul says, that the High Priest was appointed to judge according to the law of Moses. Acts xxiv. 3. And Christ himself, in the introduction to his precepts, declares that he came not to destroy the law, but to fulfil it. Matt. v. I7. The application of his meaning to the ritual law is very plain, for it was only the outline and shadow of that perfect body, of which the Gospel formed the substance. But how is it possible that the judicial laws should stand, if Christ, according to the opinion of some, abolished them by his coming? Now if the law remained in force as long as the Jewish state continued, it follows that the Jewish converts to Christianity if called to the magisterial office, could not refuse it on the score of declining to pass sentence of death, and that they could not decide otherwise than the law of Moses had prescribed.
Upon weighing the whole matter, the slightest ground cannot be discovered for supposing that any pious man, who had heard those words from our Saviour himself, would have understood them in a sense different from that which has been here given. It must however be admitted that, before the Gospel dispensation permission or impunity was granted to certain acts and dispositions, which it would neither be necessary nor proper to examine at present, upon which Christ did not allow his followers to act. Of this kind was the permission to put away a wife for every offence, and to seek redress by law for every injury. Now between the positive precepts of Christ and those permissions there is a difference, but not a contradiction. For he that retains his wife, and he that forgoes his right of redress, does nothing CONTRARY to the law, but rather acts agreeably to the SPIRIT of it. It is very different with a judge, who is not merely permitted, but commanded by the law to punish a murderer with death, incurring guilt in the sight of God, if he should act otherwise. If Christ had forbidden him to put a murderer to death, his prohibition would have amounted to a contradiction, and it would have abolished the law.
The example of Cornelius the Centurion supplies a sixth argument in favor of this opinion. In receiving the holy spirit from Christ, he received an indubitable proof of his justification; he was baptized into the name of Christ by Peter, yet we do not find that he either had resigned or was advised by the Apostle to resign his military commission. In reply to which some maintain, that when instructed by Peter in the nature of the Christian religion, he must have been instructed to form the resolution of quitting his military calling. There would be some weight in their answer, if it could be shown that an absolute prohibition of war is to be found among the precepts of Christ. And as it can be found nowhere else, it would have been inserted in its proper place among the precepts of Christ, that after ages might not have been ignorant of the rules of duty. Nor as may be seen in the xix. chap, of the Acts of the Apostles and the 19th ver. is it usual with St. Luke, in cases where the personal character and situation or converts required an extraordinary change of life and disposition, to pass over such a circumstance without notice.
The seventh argument is like the preceding, and is taken from the example of Sergius Paulus, which has been already mentioned. In the history of his conversion there is not the least intimation of "his abdicating the magistracy, or being required to do so. Therefore silence respecting a circumstance, which would naturally and necessarily have been mentioned, may be fairly taken as a proof that it never existed. The conduct of St. Paul supplies us with an eighth argument on this subject. When he understood that the Jews lay in wait for an opportunity to seize and kill him, he immediately gave information of their design to the commander of the Roman garrison, and when the commander gave him a guard of soldiers to protect him on his journey, he made no remonstrance, nor ever hinted either to the commander or the soldiers that it was displeasing to God to repel force by force. Yet this is the same Apostle who, as appears from all his writings, 2 Tim. iv. 2. neither himself neglected nor allowed others to neglect any opportunity of reminding men of their duty. In addition to all that has been said, it may be observed, that the peculiar end of what is lawful and binding, must itself be lawful and binding also. It is lawful to pay tribute, and according to St. Paul's explanation, it is an act binding upon the conscience, From. xiii. 3, 4, 6. For the end of tribute is to supply the state with the means of protecting the good, and restraining the wicked. There is a passage in Tacitus very applicable to the present question. It is in the fourth book of his history, in the speech of Petilius Cerealis, who says, "the peace of nations cannot be preserved without armies, nor can armies be maintained without pay, nor pay supplied without taxation." There is a sentiment similar to this of the historian, in St. Augustin, he says, "for this purpose we pay tribute, that the soldier may be provided with the necessaries of life."
The tenth argument is taken from that part of the xxv. chap. of the Acts of the Apostles, where Paul says, "If I have wronged any man, or done any thing worthy of death, I refuse not to die." From whence the opinion of St. Paul may be gathered, that, even after the publication of the gospel, there were certain crimes which justice not only allowed but required to be punished with death; which opinion St. Peter also maintains. But if it had been the will of God that capital punishments should be abolished, Paul might have cleared himself, but he ought not to have left an impression on the minds of men, that it was at that time equally lawful as before to punish the guilty with death. Now as it has been proved, that the coming of Christ did not take away the right of inflicting capital punishments, it has at the same time been proved, that war may be made upon a multitude of armed offenders, who can only be brought to justice by defeat in battle. The numbers, the strength and boldness of the aggressors, though they may have their weight in restraining our deliberations, cannot in the least diminish our right.
The substance of the eleventh argument rests not only upon our Saviour's having abolished those parts of the Mosaic law, which formed a wall of separation between the Jews and other nations, but upon his allowing the moral parts to remain, as standing rules, approved by the law of nature, and the consent of every civilized people, and containing whatever is good and virtuous.
Now the punishing of crimes, and the taking up arms to avenge or ward off injuries are among those actions, which by the law of nature rank as laudable, and are referred to the virtues of justice and beneficence. And here is the proper place to animadvert slightly upon the mistake of those, who derive the rights of war, possessed by the Israelites, solely from the circumstance of God having given them the land of Canaan and commissioned them to drive out the inhabitants. This may be one just reason, but it is not the sole reason.
For, prior to those times, holy men guided by the light of nature undertook wars, which the Israelites themselves afterwards did for various reasons, and David in particular, to avenge the violated rights of ambassadors. But the rights, which any one derives from the law of nature, are no less his own than if God had given them: nor are those rights abolished by the law of the Gospel.
VIII. Let us now consider the arguments, by which the contrary opinion is supported, that the pious reader may judge more easily, to which side the scale inclines.
In the first place, the prophecy of Isaiah is generally alleged, who says the time shall come, "when nations shall beat their swords into plow-shares, and turn their spears into pruning hooks. Nation shall not lift up sword against nation, neither shall they learn war any more." ii. 4. But this prophecy, like many others, is to be taken conditionally, alluding to the state of the world that would take place, if all nations would submit to the law of Christ, and make it the rule of life, to which purpose God would suffer nothing to be wanting on his part. For it is certain, that if all people were Christians, and lived like Christians, there would be no wars, which Arnobius expresses thus, "If all men, knowing that it is not their corporeal form alone which makes them men, but the powers of the understanding, would lend a patient ear to his salutary and pacific instructions, if they would trust to his admonitions rather than to the swelling pride and turbulence of their senses, iron would be employed for instruments of more harmless and useful operations, the world enjoy the softest repose and be united in the bands of inviolable treaties." On this subject Lactantius, reproaching the Pagans with the deification of their conquerors, says, "what would be the consequence, if all men would unite in concord? Which might certainly be brought to pass, if, abandoning ruinous and impious rage, they would live in justice and innocence." Or this passage of the prophecy must be understood literally, and, if taken in that sense, it shews that it is not yet fulfilled, but its accomplishment must be looked for in the general conversion of the Jewish people. But, which ever way you take it, no conclusion can be drawn from it against the justice of war, as long as violent men exist to disturb the quiet of the lovers of peace. [Translator's note: The remainder of this section is omitted, Grotius himself stating it to be only a repetition and enlargement of his arguments immediately preceding it.]
IX. In examining the meaning of written evidence, general custom, and the opinions of men celebrated for their wisdom have usually great weight; a practice which it is right to observe in the interpretation of holy scripture. For it is not likely that the churches, which had been founded by the Apostles, would either suddenly or universally have swerved from those opinions, which the Apostles had briefly expressed, in writing, and afterwards more fully and clearly explained to them with their own lips, and reduced to practice. Now certain expressions of the primitive Christians are usually alleged by those who are adverse to all wars, whose opinions may be considered and refuted in three points of view.
In the first place, from these expressions nothing more can be gathered than the private opinions of certain individuals, but no public opinion of the Churches. Besides these expressions for the most part are to be found only in the writings of Origen, Tertullian and some few others, who wished to distinguish themselves by the brilliancy of their thoughts, without regarding consistency in their opinions. For this same Origen says, that Bees were given by God as a pattern for men to follow in conducting just, regular, and necessary wars; and likewise Tertulian, who in some parts seems to disapprove of capital punishments, has said, "No one can deny that it is good the guilty should be punished." He expresses his doubts respecting the military profession, for in his book upon idolatry, he says, it is a fit matter of inquiry, whether believers can take up arms, or whether any of the military profession can be admitted as members of the Christian Church. But in his Book entitled, the SOLDIER'S CROWN, after some objections against the profession of arms, he makes a distinction between those who are engaged in the army before baptism, and those who entered after they had made the baptismal vow. "It evidently, says he alters the case with those who were soldiers before their conversion to Christianity; John admitted them to baptism, in one instance Christ approved, and in another Peter instructed a faithful Centurion : yet with this stipulation, that they must either like many others, relinquish their calling, or be careful to do nothing displeasing to God." He was sensible then that they continued in the military profession after baptism, which they would by no means have done, if they had understood that all war was forbidden by Christ. They would have followed the example of the Soothsayers, the Magi, and other professors of forbidden arts, who ceased to practice them, when they became Christians. In the book quoted above, commanding a soldier, who was at the same time a Christan, he says, "O Soldier glorious in God."
The second observation applies to the case of those, who declined or even refused bearing arms, on account of the circumstances of the times, which would have required them to do many acts inconsistent with their Christian calling. In Dolabella's letter to the Ephesians, which is to be found in Josephus, we see that the Jews requested an exemption from military expeditions, because, in mingling with strangers, they could not conveniently have observed the rites of their own laws and, would have been obliged to bear arms, and to make long marches on the Sabbaths. And we are informed by Josephus that, for the same reasons, the Jews obtained their discharge of L. Lentulus. In another part, he relates that when the Jews had been ordered to leave the city of Rome, some of them inlisted in the army, and that others, who out of respect to the laws of their country, for the reasons before mentioned, refused to bear arms, were punished. In addition to these a third reason may be given, which was that they would have to fight against their own people, against whom it was unlawful to bear arms, especially when they incurred danger and enmity for adhering to the Mosaic law. But the Jews, whenever they could do it, without these inconveniences, served under foreign princes, previously stipulating, as we are informed by Josephus, for liberty to live according to the laws and rules of their own country. Tertullian objects to the military service of his own times on account of dangers, and inconveniences very similar to those, which deterred the Jews. In his book on Idolatry, he says, "it is impossible to reconcile the oath of fidelity to serve under the banners of Christ, with that to serve under the banners of the Devil." Because the soldiers were ordered to swear by Jupiter, Mars, and the other Heathen Gods. And in his book on the Soldier's Crown, he asks, if the soldier be to keep watch before the temples, which he has renounced, to sup where he is forbidden by the Apostle, and to guard in the night the Gods, whom he has abjured in the day ?" And he proceeds with asking, "f there be not many other military duties, which ought to be regarded in the light of sins?"
The third point of view, in which the subject is to be considered, relates to the conduct of those primitive Christians, who, in the ardour of zeal, aimed at the most brilliant attainments, taking the divine counsels for precepts of obligation. The Christians, says Athenagoras, never go to law with those, who rob them.
Salvian says, it was commanded by Christ that we should relinquish the object of dispute, rather than engage in law suits. But this, taken in so general an acceptation, is rather by the way of counsel, in order to attain to a sublimer mode of life, than intended as a positive precept. Thus many of the primitive Fathers condemned all oaths without exception, yet St. Paul, in matters of great importance, made use of these solemn appeals to God. A Christian in Tatian said, "I refuse the office of Praetor," and in the words of Tertullian, "a Christian is not ambitious of the Aedile's office." In the same manner Lactantius maintains that a just man, such as he wishes a Christian to be, ought not to engage in war, nor, as all his wants can be supplied at home, even to go to sea. How many of the primitive fathers dissuade Christians from second marriages? All these counsels are good, recommending excellent attainments, highly acceptable to God, yet they are not required of us, by any absolute law. The observations already made are sufficient to answer the objections derived from the primitive times of christianity.
Now in order to confirm our opinions, we may observe that they have the support of writers, even of greater antiquity, who think that capital punishments may be inflicted, and that wars, which rest upon the same authority, may be lawfully engaged in by Christians. Clemens Alexandrinus says, that "a Christian, if, like Moses, he be called to the exercise of sovereign power, will be a living law to his subjects, rewarding the good, and punishing the wicked." And, in another place, describing the habit of a Christian, he says, "it would become him to go barefoot, unless he were a soldier." In the work usually entitled the CONSTITUTIONS OF CLEMENS ROMANUS, we find that "it is not all killing which is considered unlawful, but only that of the innocent; yet the administration of judicial punishments must be reserved to the supreme power alone." But without resting upon individual authorities, we can appeal to the public authority of the church which ought to have the greatest weight. From hence it is evident that none were ever refused baptism, or excommunicated by the church, merely for bearing arms, which they ought to have been, had the military profession been repugnant to the terms of the new covenant. In the CONSTITUTIONS just quoted, the writer speaking of those who, in the primitive times; were admitted to baptism, or refused that ordinance; says, "let a soldier who desires to be admitted be taught to forbear from violence, and false accusations, and to content with his regular pay. If he promises obedience let him be admitted." Tertullian in his Apology, speaking in the character of Christians, says, "We sail along with you, and we engage in the same wars," having little before observed, "we are but strangers, yet have filled all your cities, your islands, your castles, your municipal towns, your councils, and even your camps. He had related in the same book that rain had been obtained for the Emperor Marcus Aurelius by the prayers of the Christian soldiers. In his book of the crown, he commends a soldier, who had thrown away his garland, for a courage superior to that of his brethren in arms, and informs us that he had many Christian fellow soldiers.
To these proofs may be added the honours of Martyrdom given by the Church to some soldiers, who had been cruelly persecuted, and had even suffered death for the sake of Christ, among whom are recorded three of St. Paul's companions, Cerialis who suffered martyrdom under Decius; Marinus under Valerian; fifty under Aurelian, Victor, Maurus, and Valentinus, a lieutenant general under Maximian. About the same time Marcellus the Centurion, Severian under Licinius. Cyprian, in speaking or Laurentinus, and Ignatius, both Africans, says, "They too served in the armies of earthly princes, yet they were truly spiritual soldiers of God, defeating the wiles of the Devil by a steady confession of the name of Christ, and earning the palms and crowns of the Lord by their sufferings." And from hence it is plain what was the general opinion of the primitive Christians upon war, even before the Emperors became Christians.
It need not be thought surprising, if the Christians of those times were unwilling to appear at trials for life, since, for the most part, the persons to be tried were Christians. In other respects too, besides being unwilling to witness the unmerited sufferings of their persecuted brethren, the Roman laws were more severe than Christian lenity could allow of, as may be seen from the single instance of the Silanian decree of the Senate. Indeed capital punishments were not abolished even after Constantine embraced and began to encourage the Christian religion. He himself among other laws enacted one similar to that of the ancient Romans, for punishing parncides, by sewing them in a sack with certain animals, and throwing them into the sea, or the nearest river. This law is to be found in his code under the "title of the murders of parents or children." Yet in other respects he was so gentle in punishing criminals, that he is blamed by many historians for his excessive lenity. Constantine, we are informed by historians, had at that time many Christians in his army, and he used the name of Christ as the motto upon his standards. From that time too the military oath was changed to the form, which is found in Vegetius, and the soldier swore, "By God, and Christ, and the holy spirit, and the majesty of the Emperor, to whom as next to God, homage and reverence are due from mankind." Nor out of so many Bishops at that time, many of Whom suffered the most cruel treatment for their religion, do we read of a single one, if who dissuaded Constantine, by the terrors of divine wrath from inflicting capital punishments, or prosecuting wars, or who deterred the Christians, for the same reasons, from serving in the armies. Though most of those Bishops were strict observers of discipline, who would by no means dissemble in points relating to the duty of the Emperors or of others. Among this class, in the time of Theodosius, we may rank Ambrose, who in his seventh discourse says, "there is nothing wrong in bearing arms; but to bear arms from motives of rapine is a sin indeed," and in his first book of Offices, he maintains the same opinion, that "the courage which defends one's country against the incursions of barbarians, or protects one's family and home from the attacks of robbers, is complete justice." These arguments so decidedly shew the opinions of the primitive Christians in the support of just and necessary war, that the subject requires no farther proof or elucidation.
Nor is the argument invalidated by a fact pretty generally known, that Bishops and other Christians often interceded in behalf of criminals, to mitigate the punishment of death, and that any, who had taken refuge in churches, were not given up, but upon the promise of their lives being spared. A custom was introduced likewise of releasing all prisoners about the time of Easter. But all these instances, if carefully examined, will be found the voluntary acts of Christian kindness, embracing every opportunity to do good, and not a settled point of public opinion condemning all capital punishments. Therefore those favours were not universal; but limited to times and places, and even the intercessions themselves were modified with certain exceptions. [Translator's Note: As Grotius has so fully established his argument, it is unnecessary to review his answer to further objections.]
CHAPTER 3: The Divison of War Into Public and Private and the Nature of Sovereign Power.
The Division of War into public and private--Examples to prove that all private War is not repugnant to the Law of Nature since the erection of Courts of Justice--The Division of Public War into formal, and informal- Whether the suppression of Tumults by subordinate Magistrates be properly public War--Civil Power, in what it consists--Sovereign Power further considered--The opinion of those, who maintain that the Sovereign Power is always in the people, refuted, and their arguments answered--Mutual subjection refuted-Cautions requisite to understand the nature of Sovereign Power--Distinction of the real differences that exist under similar names--Distinction between the right to Sovereign Power, and the mode of exercising it.
I. THE first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry.
The proofs that have been already produced, to shew that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Yet although public trials and courts of Justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every one's submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that "what can be done by a magistrate with the authority of the state should never be intrusted to individuals; as private redress would give rise to greater disturbance. And "the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force?" And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.
II. It is a matter beyond all doubt that the liberty of private redress, which once existed, was greatly abridged after courts of justice were established. Yet there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open. For when the law prohibits any one from redressing his own wrongs, it can only be understood to apply to circumstances where a legal remedy exists. Now the obstruction in the way to legal redress may be either temporary or absolute. Temporary, where it is impossible for the injured party to wait for a legal remedy, without imminent danger and even destruction. As for instance, if a man were attacked in the night, or in a secret place where no assistance could be procured. Absolute, either as the right, or the fact may require. Now there are many situations, where the right must cease from the impossibility of supporting it in a legal way, as in unoccupied places, on the seas, in a wilderness, or desert island, or any other place, where there is no civil government. All legal remedy too ceases by fact, when subjects will not submit to the judge, or if he refuses openly to take cognizance of matters in dispute. The assertion that all private war is not made repugnant to the law of nature by the erection of legal tribunals, may be understood from the law given to the Jews, wherein God thus speaks by the mouth of Moses, Exod. xxii. 2. "If a thief be found breaking up, that is, by night, and be smitten that he dies, there shall no blood be shed for him, but if the sun be risen upon him, there shall be blood shed for him." Now this law, making so accurate a distinction in the merits of the case, seems not only to imply impunity for killing any one, in self-defence, but to explain a natural right, founded not on any special divine command, but on the common principles of justice. From whence other nations have plainly followed the same rule. The passage of the twelve tables is well known, undoubtedly taken from the old Athenian Law, "If a thief commit a robbery in the night, and a man kill him, he is killed lawfully." Thus by the laws of all known and civilized nations, the person is judged innocent, who kills another, forcibly attempting or endangering his life; a conspiring and universal testimony, which proves that in justifiable homicide, there is nothing repugnant to the law of nature.
[Translator's Note: As the topics of the third section have been so fully stated in the second chapter, that section has been omitted, and the translation goes on from the second of the original to the fourth.]
IV. Public war, according to the law of nations, is either SOLEMN, that is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful war is commonly given to what is here called formal, in the same sense in which a regular will is opposed to a codicil, or a lawful marriage to the cohabitation of slaves. This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects. These observations were the more necessary ; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.
Now a public war, LESS SOLEMN, may be made without those formalities, even against private persons, and by any magistrate whatever. And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his offices; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state. There is such a law as this in the last book of Plato ON LAWS. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.
In certain cases this authority may be communicated to others. For it is a point settled beyond all doubt that subordinate magistrates may, by their officers, reduce a few disobedient and tumultuous persons to subjection, provided, that to do it, it requires not a force of such enormous magnitude as might endanger the state. Again, if the danger be so imminent as to allow of no time for an application to the sovereign executive power, here too the necessity is admitted as an exception to the general rule. Lucius Pinarius the Governor of Enna, a Sicilian garrison, presuming upon this right, upon receiving certain information that the inhabitants had formed a conspiracy to revolt to the Carthaginians, put them all to the sword, and by that means saved the place. Franciscus Victoria allows the inhabitants of a town to take up arms, even without such a case of necessity, to redress their own wrongs, which the Prince neglects to avenge, but such an opinion is justly rejected by others.
V. Whether the circumstances, under which subordinate magistrates are authorised to use military force, can properly be called public war or not, is a matter of dispute among legal writers, some affirming and others denying it. If indeed we call no other public war, but that which is made by magisterial authority, there is no doubt but that such suppressions of tumult are public wars, and those who in such cases resist the magistrate in the execution of his office, incur the guilt of rebellion against superiors. But if public war is taken in the higher sense of FORMAL war, as it undoubtedly often is; those are not public wars; because to entitle them to the full rights of such, the declaration of the sovereign power and other requisites are wanting. Nor do the loss of property and the military executions, to which the offenders are subject, at all affect the question. For those casualties are not so peculiarly attached to formal war, as to be excluded from all other kinds. For it may happen, as in an extensive empire for instance, that persons in subordinate authority, may, when attacked, or threatened with attack, have powers granted to commence military operations. In which case the war must be supposed to commence by the authority of the sovereign power; as a person is considered to be the author of a measure which by virtue of his authority he empowers another to perform. The more doubtful point is, whether, where there is no such commission, a conjecture of what is the will of the sovereign power be sufficient. This seems not admissible. For it is not sufficient to consider, what we suppose would be the Sovereign's pleasure, if he were consulted; but what would be his actual will, in matters admitting of time for deliberation, even though he were not formally consulted; if a law was to be passed upon those matters. "For though UNDER SOME PARTICULAR CIRCUMSTANCES, it may be necessary to waive consulting the will of the sovereign, yet this would by no means authorise it as a GENERAL PRACTICE." For the safety of the state would be endangered, if subordinate powers should usurp the right of making war at their discretion. It was not without reason, that Cneus Manlius was accused by his Lieutenants of having made war upon the Galatians without authority from the Roman people. For though he Galatians bad supplied Antiochus with troops, yet as peace had been made with him, it rested with the Roman people, and not with Manlius to determine in what manner the Galatians should be punished for assisting an enemy. Cato proposed that Julius Caesar should be delivered up to the Germans for having attacked them in violation of his promise, a proposal proceeding rather from the desire to be rid of a formidable rival, than from any principle of justice.
The case was thus; the Germans had assisted the Gauls, enemies of the Roman people, therefore they had no reason to complain of the injury done to them, if he war against the Gauls, in which they had made themselves a party concerned, was just. But Caesar ought o have contented himself with driving the Germans out f Gaul, the province assigned him, without pursuing hem into their own country, especially as there was no farther danger to be apprehended from them; unless he ad first consulted the Roman people. It was plain, then, the Germans had no right to demand the surrender of Caesar's person, though the Romans had a right to punish him for having exceeded his commission. On a similar occasion the Carthaginians answered the Romans; "It is not the subject of inquiry whether Hannibal has besieged Saguntum, by his own private or by public authority, but whether justly or unjustly. For with respect to one of our own subjects it is our business to inquire by what authority he has acted; but the matter of discussion with you is, whether he has broken any treaty." Cicero defends the conduct of Octavius and Decimus Brutus, who had taken up arms against Antony. But though it was evident that Antony deserved to be treated as an enemy, yet they ought to have waited for the determination of the Senate and people of Rome, whether it were for the public interest not to take notice of his conduct or to punish it, to agree to terms of peace with him, or to have recourse to arms. This would have been proper; for no one is obliged to exercise the right of punishing an enemy, if it is attended with probable danger.
But even if it had been judged expedient to declare Antony an enemy, the choice of the persons to conduct the war should have been left to the Senate and people of Rome. Thus when Cassius demanded assistance of the Rhodians, according to treaty, they answered they would send it, if the senate thought proper. This refutation of Cicero's opinion will serve, along with many other instances to be met with; as an admonition not to be carried away by the opinions of the most celebrated writers, particularly the most brilliant orators, who often speak to suit the circumstances of the moment. But all political investigation requires a cool and steady judgment, not to be biased by examples, which may rather be excused than vindicated.
Since then it has already been established that no war can lawfully be made but by the sovereign power of each state, in respect to all the questions connected with war, it will be necessary to examine what that sovereign power is, and who are the persons that hold it.
VI. The moral power then of governing a state, which is called by Thucydides the civil power, is described as consisting of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and appointing its own magistrates. Aristotle, in the fourth book of his Politics, comprises the sovereignty of a state in the exercise of the deliberative, executive, and judicial powers. To the deliberative branch he assigns the right of deciding upon peace or war, making or annulling treaties, and framing and passing new laws. To these he adds the power of inflicting death, banishment, and forfeiture, and of punishing also for public peculation. In the exercise of judicial power, he includes not only the punishment of crimes and misdemeanors, but the redress of civil injuries. Dionysius of Halicarnassus, points out three distinguishing marks of sovereign power; and those are, the right of appointing magistrates, the right of enacting and repealing laws, and the right of making war and peace. To which, in another part, he adds the administration of justice, the supreme authority in matters of religion, and the right of calling general councils.
A true definition comprehends every possible branch of authority that can grow out of the possession and exercise of sovereign power. For the ruler of every state must exercise his authority either in person, or through the medium of others. His own personal acts must be either general or special. He may be said to do GENERAL acts in passing or repealing laws, respecting either temporal matters, or spiritual concerns, as far as the latter relate to the welfare of the state. The knowledge of these principles is called by Aristotle the masterpiece in the science of government.
The particular acts of the Sovereign are either directly of a public nature, or a private, but even the latter bear reference to his public capacity. Now the acts of the sovereign executive power of a directly public kind are the making of peace and war and treaties, and the imposition of taxes, and other similar exercises of authority over the persons and property of its subjects, which constitute the sovereignty of the state. Aristotle calls the knowledge of this practice political and deliberative science.
The private acts of the sovereign are those, in which by his authority, disputes between individuals are decided, as it is conducive to the peace of society that these should be settled. This is called by Aristotle the judicial power. Thus the acts of the sovereign are done in his name by his magistrates or other officers, among whom ambassadors are reckoned. And in the exercise of all those right sovereign power consists.
VII. That power is called sovereign, whose actions are not subject to the controul of any other power, so as to be annulled at the pleasure of any other human will. The term ANY OTHER HUMAN WILL exempts the sovereign him. self from this restriction, who may annul his own acts, as may also his successor, who enjoys the same right, having the same power and no other. We are to consider then what is the subject in which this sovereign power exists. Now the subject is in one respect common, and in another proper, as the body is the common subject of sight, the eye the proper, so the common subject of sovereign power is the state, which has already been said to be a perfect society of men. Now those nations, who are in a state of subjugation to another power, as the Roman provinces were, are excluded from this definition. For those nations are not sovereign states of themselves, in the present acceptation of the word; but are subordinate members of a great state, as slaves are members of a household. Again it happens that many states, forming each an independent body, may have one head. For political are not like natural bodies, to only one of which the same head can belong. Whereas in the former, one person can exercise the function of the head to many distinct bodies. As a certain proof of which, when the reigning house has become extinct, the sovereign power returns to the hands of the nation. So it may happen, that many states may be connected together by the closest federal union, which Strabo, in more places than one calls a system, and yet each retain the condition of a perfect, individual state, which has been observed by Aristotle and others in different parts of their writings. Therefore the common subject of sovereign power is the state, taken in the sense already explained. The proper subject is one or more persons according to the laws and customs of each nation. This is called by Galen in the sixth book DE PLACITIS HIPPOCRAT ET PLATONIS, the first power of the state.
VIII. And here is the proper place for refuting the opinion of those, who maintain that, every where and without exception, the sovereign power is vested in the people, so that they have a right to restrain and punish kings for an abuse of their power. However there is no man of sober wisdom, who does not see the incalculable mischiefs, which such opinions have occasioned, and may still occasion; and upon the following grounds they may be refuted.
From the Jewish, as well as the Roman Law, it appears that any one might engage himself in private servitude to whom he pleased. Now if an individual may do so, why may not a whole people, for the benefit of better government and more certain protection, completely transfer their sovereign rights to one or more persons, without reserving any portion to themselves? Neither can it be alleged that such a thing is not to be presumed, for the question is not, what is to be presumed in a doubtful case, but what may lawfully be done. Nor is it any more to the purpose to object to the inconveniences, which may, and actually do arise from a people's thus surrendering their rights. For it is not in the power of man to devise any form of government free from imperfections and dangers. As a dramatic writer says, I you must either take these advantages with those imperfections, or resign your pretensions to both."
Now as there are different ways of, living, some of a worse, and some of a better kind, left to the choice of every individual; so a nation, "under certain circumstances, WHEN for instance, the succession to the throne is extinct, or the throne has by any other means become vacant," may chuse what form of government she pleases. Nor is this right to be measured by the excellence of this or that form of government, on which there may be varieties of opinion, but by the will of the people.
There may be many reasons indeed why a people may entirely relinquish their rights, and surrender them to another: for instance, they may have no other means of securing themselves from the danger of immediate destruction, or under the pressure of famine it may be the only way, through which they can procure support. For if the Campanians, formerly, when reduced by necessity surrendered themselves to the Roman people in the following terms:--"Senators of Rome, we consign to your dominion the people of Campania, and the city of Capua, our lands, our temples, and all things both divine and human," and if another people as Appian relates, offered to submit to the Romans, and were refused, what is there to prevent any nation from submitting in the same manner to one powerful sovereign? It may also happen that a master of a family, having x-large possessions, will suffer no one to reside upon them on any other terms, or an owner, having many slaves, may give them their liberty upon condition of their doing certain services, and paying certain rents; of which examples may be produced. Thus Tacitus, speaking of the German slaves, says, "Each has his own separate habitation, and his own household to govern. The master considers him as a tenant, bound to pay a certain rent in corn, cattle, and wearing apparel. And this is the utmost extent of his servitude."
Aristotle, in describing the requisites, which fit men for servitude, says, that 'those men, whose powers are chiefly confined to the body, and whose principal excellence consists in affording bodily service, are naturally slaves, because it is their interest to be so." In the same manner some nations are of such a disposition that they are more calculated to obey than to govern, which seems to have been the opinion which the Cappadocians held of themselves, who when the Romans offered them a popular government, refused to accept it, because the nation they said could not exist in safety without a king. Thus Philostratus in the life of Apollonius, says, that it was foolish to offer liberty to the Thracians, the Mysians, and the Getae, which they were not capable of enjoying. The example of nations, who have for many ages lived happily under a kingly government, has induced many to give the preference to that form. Livy says, that the cities under Eumenes would not have changed their condition for that of any free state whatsoever. And sometimes a state is so situated, that it seems impossible it can preserve its peace and existence, without submitting to the absolute government of a single person, which many wise men thought to be the case with the Roman Republic in the time of Augustus Caesar. From these, and causes like these it not only may, but generally does happen, that men, as Cicero observes in the second book of his offices, willingly submit to the supreme authority of another.
Now as property may be acquired by what has been already styled just war, by the same means the rights of sovereignty may be acquired. Nor is the term sovereignty here meant to be applied to monarchy alone, but to government by nobles, from any share in which the people are excluded. For there never was any government so purely popular, as not to require the exclusion of the poor, of strangers, women, and minors from the public councils. Some states have other nations under them, no less dependent upon their will, than subjects upon that of their sovereign princes. From whence arose that question, Are the Collatine people in their own power? And the Campanians, when they submitted to the Romans, are said to have passed under a foreign dominion. In the same manner Acarnania and Amphilochia are said to have been under the dominion of the Aetolians; Peraea and Caunus under that of the Rhodians; and Pydna was ceded by Philip to the Olynthians. And those towns, that had been under the Spartans, when they were delivered from their dominion, received the name of the free Laconians. The city of Cotyora is said by Xenophon to have belonged to the people of Sinope. Nice in Italy, according to Strabo, was adjudged to the people of Marseilles; and the island of Pithecusa to the Neapolitans. We find in Frontinus, that the towns of Calati and Caudium with their territories were adjudged, the one to the colony of Capua, and the other to that of Beneventum. Otho, as Tacitus relates, gave the cities of the Moors to the Province of Baetia. None of these instances, any more than the cessions of other conquered countries could be admitted, if it were a received rule that the rights of sovereigns are under the controul and direction of subjects.
Now it is plain both from sacred and profane history, that there are kings, who are not subject to the controul of the people in their collective body; God addressing the people of Israel, says, if thou shalt say, "I will place a king over me"; and to Samuel "Shew them the manner of the king, who shall reign over them." Hence the King is said to be anointed over the people, over the inheritance of the Lord, over Israel. Solomon is styled King over all Israel. Thus David gives thanks to God, for subduing the people under him. And Christ says, 'the Kings of the nations bear rule over them." There is a well known passage in Horace, "Powerful sovereigns reign over their own subjects, and the supreme being over sovereigns themselves." Seneca thus describes the three forms of government, "Sometimes the supreme leading men of the state, sometimes this power of the people, and dominion over the people themselves is vested in a single person." Of the last description are those, who, as Plutarch says, exercise authority not according to the laws, but over the laws. And in Herodutus, Otanes describes a monarch as one whose acts are not subject to controul. Dion Prusaeensis also and Pausanias define a monarchy in the same terms.
Aristotle says there are some kings, who have the same right, which the nation elsewhere possesses over persons and property. Thus when the Roman Princes began to exercise regal power, the people it was said had transferred all their own personal sovereignty to them, which gave rise to the saying of Marcus Antoninus the Philosopher, that no one but God alone can be judge of the Prince. Dion. L. liii. speaking of such a prince, says, "he is perfectly master of his own actions, to do whatever he pleases, and cannot be obliged to do any thing against his will." Such anciently was the power of the Inachidae established at Argos in Greece. For in the Greek Tragedy of the Suppliants, Aeschylus has introduced the people thus addressing the King: "You are the state, you the people; you the court from which there is no appeal, you preside over the altars, and regulate all affairs by your supreme will." King Theseus himself in Euripides speaks in very different terms of the Athenian Republic; "The city is not governed by one man, but in a popular form, by an annual succession of magistrates." For according to Plutarch's explanation, Theseus was the general in war, and the guardian of the laws; but in other respects nothing more than a citizen. So that they who are limited by popular controul are improperly called kings. Thus after the time of Lycurgus, and more particularly after the institution of the Ephori, the Kings of the Lacedaemonians are said by Polybius, Plutarch, and Cornelius Nepos, to have been Kings more in name than in reality. An example which was followed by the rest of Greece. Thus Pausanias says of the Argives to the Corinthians, "The Argives from their love of equality have reduced their kingly power very low; so that they have left the posterity of Cisus nothing more than the shadow of Kings." Aristotle denies such to be proper forms of government, because they constitute only a part of an Aristocracy or Democracy.
Examples also may be found of nations, who have not been under a perpetual regal form, but only for a time under a government exempt from popular controul. Such was the power of the Amimonians among the Cnidians, and of the Dictators in the early periods of the Roman history, when there was no appeal to the people, from whence Livy says, the will of the Dictator was observed as a law. Indeed they found this submission the only remedy against imminent danger, and in the words of Cicero, the Dictatorship possessed all the strength of royal power.
It will not be difficult to refute the arguments brought in favour of the contrary opinion. For in the first place the assertion that the constituent always retains a controul over the sovereign power, which he has contributed to establish, is only true in those cases where the continuance and existence of that power depends upon the will and pleasure of the constituent: but not in cases where the power, though it might derive its origin from that constituent, becomes a necessary and fundamental part of the established law. Of this nature is that authority to which a woman submits when she gives herself to a husband. Valentinian the Emperor, when the soldiers who had raised him to the throne, made a demand of which he did not approve, replied; "Soldiers, your election of me for your emperor was your own voluntary choice; but since you have elected me, it depends upon my pleasure to grant your request. It becomes you to obey as subjects, and me to consider what is proper to be done."
Nor is the assumption true, that all kings are made by the people, as may be plainly seen from the instances adduced above, of an owner admitting strangers to reside upon his demesnes on condition of their obedience, and of nations submitting by right of conquest. Another argument is derived from a saying of the Philosophers, that all power is conferred for the benefit of the governed and not of the governing party. Hence from the nobleness of the end, it is supposed to follow, that subjects have a superiority over the sovereign. But it is not universally true, that all power is conferred for the benefit of the party governed. For some powers are conferred for the sake of the governor, as the right of a master over a slave, in which the advantage of the latter is only a contingent and adventitious circumstance. In the same manner the gain of a Physician is to reward him for his labour; and not merely to promote the good of his art. There are other kinds of authority established for the benefit of both parties, as for instance, the authority of a husband over his wife. Certain governments also, as those which are gained by right of conquest, may be established for the benefit of the sovereign; and yet convey no idea of tyranny, a word which in its original signification, implied nothing of arbitrary power or injustice, but only the government or authority of a Prince. Again, some governments may be formed for the advantage both of subjects and sovereign, as when a people, unable to defend themselves, put themselves under the protection and dominion of any powerful king. Yet it is not to be denied, but that in most governments the good of the subject is the chief object which is regarded: and that what Cicero has said after Herodotus and Herodotus after Hesiod, is true, that Kings were appointed in order that men might enjoy complete justice.
Now this admission by no means goes to establish the inference that kings are amenable to the people. For though guardianships were invented for the benefit of wards, yet the guardian has a right to authority over the ward. Nor, though a guardian may for mismanagement be removed from his trust, does it follow that a king may for the same reason be deposed. The cases are quite different, the guardian has a superior to judge him; but in governments, as there must be some dernier resort, it must be vested either in an individual, or in some public body, whose misconduct, as there is no superior tribunal before which they can be called, God declares that he himself will judge. Ile either punishes their offences, should he deem it necessary; or permits them for the chastisement of his people.
This is well expressed by Tacitus: he says, "you should bear with the rapacity or luxury of rulers, as you would bear with drought, or excessive rains, or any other calamities of nature. For as long as men exist there will be faults and imperfections; but these are not of uninterrupted continuance, and they are often repaired by he succession of better times." And Marcus Aurelius speaking of subordinate magistrates, said, that they were under the controul of the sovereign: but that the sovereign was amenable to God. There is a remarkable passage in Gregory of Tours, where that Bishop thus addresses the King of France, " If any of us, Sir, should transgress the bounds of justice, he may be punished by you. But if you exceed them, who can call you to account? For when we address you, you may hear us if you please; but if you will not, who can judge you, except him, who has declared himself to be righteousness?" Among the maxims of the Essenes, Porphyry cites a passage, that "no one can reign without the special appointment of divine providence." Irenaeus has expressed this well, " Kings are appointed by him at whose command men are created; and their appointment is suited to the condition of those, whom they are called to govern.' There is the same thought in the Constitutions of Clement, 'You shall fear the King, for he is of the Lord's appointment."
Nor is it an objection to what has been said, that some nations have been punished for the offences of their kings; for this does not happen, because they forbear to restrain their kings, but because they seem to give, at least a tacit consent to their vices, or perhaps, without respect to this, God may use that sovereign power which he has over the life and death of every man to inflict a punishment upon the king by depriving him of his subjects.
IX. There are some who frame an imaginary kind of mutual subjection, by which the people are bound to obey the king, as long as he governs well; but his government is subject to their inspection and controul. If they were to say that his duty to the sovereign does not oblige any one to do an act manifestly unjust and repugnant to the law of God; they would say nothing but what is true and universally admitted, but this by no means includes a right to any controul over the Prince's conduct in his lawful government. But if any people had the opportunity of dividing the sovereign power with the king, the privileges of the one, and the prerogatives of the other ought to be defined by certain bounds, which might easily be known, according to the difference of places, persons, or circumstances.
Now the supposed good or evil of any act, especially in political matters which admit of great variety of opinions and much discussion, is not a sufficient mark to ascertain these bounds. From whence the greatest confusion must follow, if under pretence of promoting good or averting evil measures, the people might struggle for the Prince's jurisdiction: a turbulent state of affairs, which no sober minded people ever wished to experience.
X. After refuting false opinions, it remains to apply some cautions, which may point out the way to ascertain correctly the person to whom sovereign power, in every state, of right belongs. The first caution necessary is to avoid being deceived by ambiguous terms, or appearances foreign to the real subject. For instance, among the Latins, although the terms PRINCIPALITY and KINGDOM are generally opposed to each other, when Caesar says, that the father of Vercingetorix held the principality of Gaul, and was put to death for aiming at sovereign power; and when Piso, in Tacitus calls Germanicus the son of a Roman Prince, not of a Parthian King; and when Suetonius says, that Caligula was on the point of converting the power of a prince into that of a king; and Velleius asserts that Maroboduus not contented with the authority of a prince over voluntary adherents and dependen s, was grasping in his mind at regal power; yet we find these terms though in reality very distinct were often confounded. For the Lacedaemonian chiefs, the descendants of Hercules, though subject to the controul of the Ephori, were nevertheless called kings: and Tacitus says, that among the ancient Germans there were kings, who governed more by the influence of persuasion than by the authority of power. Livy too, speaking of king Evander, describes him as reigning more by personal authority than by his regal power; and Aristotle, Polybius, and Diodorus give the names of Kings to the Suffetes or judges of the Carthaginians. In the same manner Solinus also calls Hanno King of the Carthaginians. Strabo speaks of Scepsis in Troas, that having incorporated the Milesians into the state, it formed itself into a Democracy, leaving the descendants of the ancient kings the title, and something of the dignity of kings.
On the other hand, the Roman emperors, after they had exercised openly, and without any disguise, a most absolute monarchical power, were notwithstanding called Princes. And in some popular states the chief magistrates are graced with ensigns of royalty.
Again the states general, that is the convention of those who represent the people, divided into classes according to Gunther, consist of three orders, which are the Prelates, the Nobles, and Deputies of x-large towns. In some places, they serve as a greater council to the king, to communicate to him the complaints of his people, which might otherwise be kept from his cars; leaving him at the same time full liberty to exercise his own discretion upon the matters so communicated. But in other places they form a body with power to inquire into the prince's measures, and to make laws.
Many think that in order to know whether a prince be sovereign or not, it is proper to inquire whether his title to the crown is by election or inheritance. For they maintain that hereditary monarchies alone are sovereign. But this cannot be received as a general criterion. For sovereignty consists not merely in the TITLE to the throne, which only implies that the successor has a right to all the privileges and prerogatives that his ancestors enjoyed, but it by no means affects the nature or extent of his powers. For right of election conveys all the powers, which the first election or appointment conferred. Among the Lacedaemonians the crown was hereditary even after the institution of the Ephori. And Aristotle describing the chief power of such a state, says, "Of these kingdoms, some are hereditary, and others elective." In the heroic times most of the kingdoms in Greece were of this description, as we are informed by Thucydides The Roman empire, on the contrary, even after the power of the Senate and people was abolished, was given or confirmed by election.
XI. Another caution is necessary. For to inquire into the matter of a right is not the same thing as to examine the nature of its tenure. A distinction which takes place not only in corporeal but in incorporeal possessions. For a right of passage or carriage through a ground is no less a right than that which entitles a man to the possession of the land itself. Now some hold these privileges by a full right of property, some by an usufructuary, and others by a temporary right. Thus the Roman Dictator had sovereign power by a temporary right. In the same manner kings, both those who are the first of their line elected to the throne, and those who succeed them in the lawful order, enjoy an usufructuary right, or inalienable right. But some sovereigns hold their power by a plenary right of property; when for instance it comes into their possession by the right of lawful conquest, or when a people, to avoid greater evils, make an unqualified surrender of themselves and their rights into their hands.
The opinion of those can never be assented to, who say that the power of the Dictator was not sovereign, because it was not permanent. For in the moral world the nature of things is known from their operations. The powers attended with equal effects are entitled to equal names. Now the Dictator for the time being performed all acts with the same authority as the most absolute sovereign; nor could any other power annul his acts. The permanence therefore of uncertainty alters no the nature of a right, although it would undoubtedly abridge its dignity, and diminish its spelndour.
[Translator's note: The translation proceeds from hence to the second book of the original, which seems to follow this part without any material break in the chain of argument: the intermediate sections relating to instances in the Roman Republic, which do not directly apply to the practice of modern governments.]
End of Book I
Copyright © 1998 Wei-Cheng Wilson Chen - All rights reserved.