Transcriber's notes:
Several chapters were omitted from the English translation of which
this is a transcription. The reasons for this are given in the
footnotes.
Words originally printed in Greek are shown that way in some versions
of this eBook. English transliterations were added to all versions by
the Transcribers and are enclosed in {curly braces}.
Other notes will be found at the end of this eBook.
[Illustration]
UNIVERSAL
CLASSICS
LIBRARY
EDITOR'S
AUTOGRAPH EDITION
ATTEST:
Robert Arnot
MANAGING EDITOR
[Illustration]
UNIVERSAL CLASSICS
LIBRARY
ILLUSTRATED
WITH PHOTOGRAVURES
ON JAPAN VELLUM
HAND PAINTED
REPRODUCTIONS
AND FULL PAGE
PORTRAITS
OF
AUTHORS
M. WALTER DUNNE
PUBLISHER
NEW YORK AND LONDON
COPYRIGHT, 1901,
BY
M. WALTER DUNNE,
PUBLISHER
GENERAL PREFACE
[Illustration]
Of the Library of Universal Classics and Rare Manuscripts, twenty
volumes are devoted to the various branches of Government, Philosophy,
Law, Ethics, English and French Belles Lettres, Hebraic, Ottoman, and
Arabian Literature, and one to a collection of 150 reproductions,
bound in English vellum, of the autographs, papers and letters of
Rulers, Statesmen, Poets, Artists and Celebrities ranging through
three centuries, crowned by an illuminated facsimile of that historic
Document, the Magna Carta.
The series in itself is an epitome of the best in History, Philosophy
and Literature. The great writers of past ages are accessible to
readers in general solely through translations. It was, therefore,
necessary that translations of such rare Classics as are embodied
in this series should be of the best, and should possess exactitude
in text and supreme faithfulness in rendering the author's thought.
Under the vigilant scholarship of the Editorial Council this has been
accomplished with unvarying excellence. The classification, selection
and editing of the various volumes have been the subject of much
earnest thought and consultation on the part of more than twenty of the
best known scholars of the day.
The Universities of Yale, Washington, Cornell, Chicago, Pennsylvania,
Columbia, London, Toronto and Edinburgh are all represented among
the contributors, the writers of special introductions, or upon
the consulting staff, the latter including the Presidents of five
of the Universities mentioned. Among others who contribute special
essays upon given subjects may be mentioned the late Librarian of
the British Museum, Dr. Richard Garnett, who furnishes the essay
introducing "Evelyn's Diary." From the Librarian of the National
Library of France, Léon Vallée, comes the fascinating introduction
to the celebrated "Memoirs of the Duc de Saint-Simon." The scholarly
minister to Switzerland (late First Assistant Secretary of State), Dr.
David J. Hill, lent his wide reading to the brilliant and luminous
essay that precedes the "Rights of War and Peace." The resources of the
Congressional Library at Washington, as well as of foreign libraries,
have all been drawn upon in the gigantic task of compressing into the
somewhat narrow limits of twenty volumes all that was highest, best,
most enduring and useful in the various ramifications of literature at
large.
The first section of the Library is devoted entirely to the manuscript
reproductions of the autographs of celebrated men in all ranks and
phases of life, covering a period of three centuries. They are, in
fact, the American edition of the reproduction of rare and celebrated
autographs drawn from the British Museum that was issued in England
under the editorship of the Assistant Keeper of the Manuscripts. They
afford an opportunity to the inquiring reader to study the characters
of Rulers, Statesmen, Writers, and Artists through the medium of their
chirography.
It has long been recognized that character is traceable through
handwriting. So it is interesting to discern in the characters traced
by Henry VIII the hardened, sensual and selfish character of that
autocrat and polygamist; in the writing of Thomas Wolsey, those crafty
traits combined with perseverance and mock humility which raised him
wellnigh to supremacy in the realm and led him finally to a downfall
more complete than any we read of in English history; and in that of
Charles V, of Spain, the hard-headed continence of character and superb
common sense which enabled him at the height of glory to retire to a
monastery while yet there was "daylight in life," as he expressed it,
"for the making of his soul." Apart from the historical interest of
these Documents, this study of character as revealed in them will prove
fascinating to thinking minds.
The Magna Carta, greatest of all historical charters wrung from the
various kings of England from Henry I downward, was granted by King
John at the pressing instance of the Barons and Commons of England
toward the end of his ill-judged and unfortunate reign. Of this
Document, celebrated and historic as it is, but little is known at
large. Although Blackstone and other prominent lawyers have written
upon it, information about it is hard to obtain. No reproduction of
the original Document has ever been offered to American collectors.
This facsimile is illuminated in colors with the shields of many of the
Peers who compelled King John to accede to their demands for civil and
religious liberty. The original charter was signed at a place called
Runnymede (the Council Meadow) a spot between Windsor and Staines,
on the 15th of June, 1215, about a year before the death of John.
It practically guaranteed to the Commons of England all the civil
and religious rights they enjoy to-day. It dealt with testamentary
law as well, securing to widows all the legal rights which they
to-day possess. It dealt with the rights of accused persons; with
military service; with feudal tenure; with taxation, and it limited
the heretofore autocratic power of the King to an extent unknown
before in the history of the world. If we except the Declaration of
Independence, it is the most interesting historical record of all time.
The Second Section of the Library (ten volumes) is devoted to the
presentation of Government, Philosophy, Law and Ethics. This section
embraces such names as Grotius, Plato, Sir George Cornewall Lewis, Adam
Smith, Hamilton, Madison, Jay, Walter Bagehot, Spinoza, Schopenhauer,
Machiavelli, as well as those builders of Ideal Governments, More,
Bacon, Campanella and Rousseau.
Of all benefactors in Literature of the human race, Grotius may
perhaps rank as first among his equals. Centuries have borne witness
to the justness of his premises and the wisdom of his conclusions. The
principles of national law laid down by him are to-day accepted as the
axioms of the Science. Among the nations, perhaps the United States is
most deeply interested in the right administration of the principles
affirmed by Grotius in his gigantic work on the "Rights of War and
Peace," and it was therefore most fitting, when the recent peace
conference at The Hague completed the great structure of international
comity, the foundations of which were laid by Grotius in 1625, that a
silver wreath was laid by the representative of the United States upon
the grave of the man to whom the Conference owed its initial impulse,
although at a distance in time of nearly three centuries.
When the Publisher determined, under the advice of his Editorial
Council, to publish Grotius, he found that only two volumes of the
first edition were available in the Library of Congress. At much
expense and trouble, he instituted a search in Europe and finally
obtained the missing volume, which he presented to the Congressional
Library, where it now is.
Sir George Cornewall Lewis's "Government of Dependencies" is
characterized by the accuracy of its information. It is a reliable
text book for the guidance of any nation in the treatment of its
dependencies and colonies. It is a Classic that will survive as long
as colonization remains to be done, and it is remarkable that although
it was published for the first time sixty years ago, the illustrations
afforded by the last two generations support the justice of its
principles and the exactness of its deductions.
Adam Smith's "Essay on Colonies" presents an introductory view of
the principles governing colonial policy. It is a fitting work to go
hand in hand with the greater one of Sir George Cornewall Lewis. It
is of practical use to American Statesmen, since the United States
seems at present to be entering upon a world-wide colonial policy. Its
practical wisdom, which has made it a Classic for all times, finds a
special applicability in the conditions of to-day, for Adam Smith was
a theorist in the best sense of the word, that is to say, he was a man
whose breadth of view, instead of unfitting him for practical details,
enabled him to deduce from the lessons of history and experience the
right solutions for the problems of Colonial policy.
Plato's "Republic" and "Statesman" must be regarded to-day not merely
as historical records of a by-gone philosophy, but as living, teaching
dissertations upon theories which cannot fail to awaken in studious
minds the highest ideals of life and government. Modern problems
stated in the light of Plato's philosophy, as it is expressed in
these books, will find readier solutions when examined in the light
of its principles. No student of sociology, of politics, national and
municipal, or of government in all its many-sided aspects, can afford
to be without a knowledge of these immortal discourses.
Goldwin Smith has declared that of all expositions of constitutional
Government, "The Federalist" ranks the highest. When Hamilton, Madison,
and Jay first conceived the idea of printing in the common tongue their
ideas upon the principles of free government, they unwittingly laid
the foundations of the best commentary on the principles of popular
government ever written. Political science owes to them the most
important contribution to its literature made since its birth. The
Essays are equally admirable for sagacity, simplicity, and patriotism,
and while The Federalist will never be read for pleasure, it contains a
mine of wisdom for the student and the constitutional lawyer, and as a
text book of political science is without a parallel.
When Bagehot issued his work on the English Constitution, it was hailed
by the critics as the most wonderful and philosophical dissertation on
the subject in any language or from any pen. John Stuart Mill used to
say that of all great subjects much remained to be written, and that
especially was this true of the English Constitution. Bagehot's work,
although affording the conclusion that monarchy in England exists as a
logical necessity, is so unbiased in its premises, so logical and clear
in its deductions, that this manifest fairness, although leading one to
conclusions distasteful to a republican mind, must endear him to his
readers. Dealing with a subject somewhat dry in its details, he invests
inanimate objects with so much light that they become realities. In the
highest sense he combines popularity and scholarship.
Spinoza's philosophy may be traced both to the influence of Bacon, his
predecessor, and to Descartes, his contemporary. Its combination of
positivism with the enthusiasm of piety characterizes his philosophy
as unique in itself, for while treating man from a purely mechanical
standpoint, it asserts that the mechanism itself is entirely divine.
Spinoza was a voluntary martyr in the cause of Free Thought. He was at
the same time both Pantheist and Monist, yet sincere in his devotion to
nature and the God of nature. His religion naturally made him a Monist,
while his philosophy led him to express the Pantheism that the lover of
God in Nature cannot avoid. While he renounced his Judaism and entered
the ranks of the Christian philosophers, he never received baptism. He
may be ranked among the greatest of the German mystics, whose work had
such profound influence upon the dogmatic Christianity of a later day.
The epithet conferred on him, namely, "God-intoxicated," summarizes
his whole attitude and the character of his philosophy better than any
lengthy dissertation.
When Schopenhauer began to write, he declared himself a true disciple
of Kant, but he modifies and adapts Kant's "Critique of Pure Reason"
to such an extent that he reaches the attitude of opposition. This
attitude he manifests throughout all his writings. He is truly an
Apostle of Protest, but in spite of his positivist contradictions
and his materialistic pantheism, he opens up a mine of suggestions
to the literary and philosophical student. In spite of the apparent
tragedy due to the conflict within him, we cannot help gathering from
Schopenhauer an immensity of what is true, what is good and what is
excellent. One thing especially noticeable about his writings is that
while German philosophers are often ponderous and in fact nebulous,
Schopenhauer is always clear, original, and readable.
To Machiavelli belongs by acclaim the honor of having written the
ideal biography of a State. His clear, straightforward, concise
statement of conditions and characters as he saw then is a model for
all writers of record. He was the first great Italian historian, and
no man has ever been more ardent in his patriotism or a more earnest
supporter of government for and by the people. The greatest tribute to
his inflexible honesty of character is the fact that while no man had
greater opportunities to enrich himself at the cost of the State, he
died leaving his family in the greatest poverty. His varied political
experience, and his assiduous study of classic writers, gave him the
ability as well as the desire to write the history of his native
State. Time has pronounced this History to be a classic worthy of
preservation, and the perspective of time has also enabled us to form a
juster and greater estimate of its author.
The Ideal Republics and Empires that have been constructed from time to
time by political dreamers have all the attractiveness of works like
Pilgrim's Progress or Gulliver's Travels, combined with a philosophy
and political insight that give them a double claim to be considered
Classics. Modern progress may be more deeply indebted than we can
estimate to the fantasies and airy castles of men like Rousseau, More,
and Campanella. The four Ideal Republics or Governments described in
this volume are perhaps the most famous of all, since they rank not
only as great creations of the imagination but as literature of the
highest class; and their writers have a further claim upon posterity
from the fact that they helped to make history.
The Third and concluding Section of the Library deals with that
tremendous range of world-wide literature which we call, for want of
a better name, Belles Lettres. Goethe contributes his brilliant and
sagacious observations on men and things as he communicated them to
Eckerman. Landor, of whom Swinburne has said that Milton alone stands
higher, both in prose and verse, furnishes us with his Classical
Conversations. Montesquieu and Goldsmith are drawn on for their
Persian and Chinese Letters. Lord Chesterfield gives us the irony and
hard-headed criticism combined with worldly common sense contained in
the Letters to His Son, and the various names best known in French
and English Belles Lettres yield what is greatest in them. Ottoman
Literature, comprising Arabian, Persian, and Hebraic Poems, affords
the reader an insight into the romantic and dramatic character of the
Oriental. The Dabistan, possibly the most extraordinary book ever
written in the East, finds itself at home in this section, while the
Literature of the Hebrews is ideally represented in that most wonderful
of all monuments of human wisdom, and perhaps folly, the "Talmud,"
together with the basis of modern metaphysics, the "Kabbala."
The Sufistic Quatrains of Omar Khayyam are here for the first time
presented complete in a collection of this order. The various editions
of Fitzgerald are reprinted, collated, and to them is added the
valuable Heron-Allen analysis of Fitzgerald's sources of inspiration.
The very rare Whinfield version is found here complete; and for the
first time in English appears M. Nicolas' French transcription of the
Teheran Manuscript. It is safe to say that any lover of Omar wishing to
add to his collection the versions here quoted would be compelled to
disburse more than one hundred times the amount this book will cost him.
While the Library of Universal Classics does not claim to be the
final condensation of the treasure houses of human philosophy and
lore, whether practical or ideal, it does most emphatically assert
its right to be called the most useful, most attractive, and most
representative selection, within the limits assigned to it, of those
world-masterpieces of literature which men, for lack of a more luminous
name, call Classics.
Robert Arnot
[Illustration: _HUGO GROTIUS_
_From an Original Painting._]
[Illustration]
THE RIGHTS OF
WAR AND PEACE
INCLUDING THE
LAW OF NATURE
AND OF NATIONS
TRANSLATED FROM THE ORIGINAL LATIN OF
GROTIUS
WITH NOTES AND ILLUSTRATIONS FROM
POLITICAL AND LEGAL WRITERS
BY
A. C. CAMPBELL, A. M.
WITH AN INTRODUCTION BY
DAVID J. Hill,
Assistant Secretary of State of the United States
M. WALTER DUNNE, PUBLISHER
NEW YORK & LONDON
COPYRIGHT, 1901,
BY
M. WALTER DUNNE,
PUBLISHER
ILLUSTRATIONS
HUGO GROTIUS _Frontispiece_
From an original painting.
WAR 109
By Gari Melchers,
From a panel painting in Library of Congress.
PEACE 213
By Gari Melchers,
From a panel painting in Library of Congress.
WAR AND PEACE 307
Frontispiece to a rare edition of Grotius.
CONTENTS
_BOOK I._
CHAPTER PAGE
Introduction 1
I. On War and Right 17
II. Inquiry into the Lawfulness of War 31
III. The Division of War into Public and Private, and the
Nature of Sovereign Power 55
_BOOK II._
I. Defense of Person and Property 73
II. The General Rights of Things 85
III. On the Original Acquisition of Things, and the Right of
Property in Seas and Rivers 103
IV. Title to Desert Lands by Occupancy, Possession, and
Prescription 109
IX. In What Cases Jurisdiction and Property Cease 117
X. The Obligation Arising from Property 123
XI. On Promises 131
XII. On Contracts 144
XIII. On Oaths 160
XV. On Treaties and on Engagements Made by Delegates
Exceeding Their Powers 166
XVI. The Interpretation of Treaties 176
XVII. On Damages Occasioned by Injury, and the Obligation to
Repair Them 195
XVIII. On the Rights of Embassies 202
XIX. On the Right of Burial 213
XX. On Punishments 220
XXI. On the Communication of Punishment 256
XXII. On the Unjust Causes of War 267
XXIII. On Doubtful Causes 274
XXIV. Precautions against Rashly Engaging in War, Even upon
Just Grounds 280
_BOOK III._
I. What Is Lawful in War 290
II. In What Manner the Law of Nations Renders the Property of
Subjects Answerable for the Debts of Sovereigns. The
Nature of Reprisals 307
III. On Just or Solemn War According to the Law of Nations on
Declarations of War 314
IV. On the Right of Killing an Enemy in Lawful War and
Committing Other Acts of Hostility 323
V. On the Right to Lay Waste an Enemy's Country and Carry Off
His Effects 332
VI. On the Acquisition of Territory and Property by Right of
Conquest 334
VII. On the Right over Prisoners of War 345
VIII. On Empire over the Conquered 348
IX. Of the Right of Postliminium 351
XI. The Right of Killing Enemies, in Just War, to be Tempered
with Moderation and Humanity 359
XII. On Moderation in Despoiling an Enemy's Country 365
XIII. On Moderation in Making Captures in War 369
XV. On Moderation in Acquiring Dominion 372
XVI. On Moderation with Respect to Things Excluded from the
Right of Postliminium by the Law of Nations 375
XVII. Respecting Those Who Are Neutral in War 377
XIX. On Good Faith between Enemies 379
XX. On the Public Faith by Which War Is Concluded; Comprising
Treaties of Peace, and the Nature of Arbitration,
Surrender, Hostages, Pledges 385
XXI. On Faith During the Continuance of War, on Truces,
Safe-Conducts, and the Redemption of Prisoners 403
XXII. On the Faith of Those Invested with Subordinate Powers
in War 411
XXIV. On Tacit Faith 415
XXV. Conclusion 417
INDEX 419
INTRODUCTION
THE WORK AND INFLUENCE OF HUGO GROTIUS.
The claims of the great work of Grotius, "_De Jure Belli ac Pacis_,"
to be included in a list of Universal Classics, do not rest upon
the felicity of style usually expected in a classic composition.
His work is marked by frequent rhetorical deformities, tedious and
involved forms of reasoning, and perplexing obscurities of phraseology
which prevent its acceptance as an example of elegant writing.
Notwithstanding these external defects, it is, nevertheless, one of the
few notable works of genius which, among the labors of centuries, stand
forth as illustrations of human progress and constitute the precious
heritage of the human race.
If it is not literature in the technical sense, the masterpiece of
Grotius is something higher and nobler,--a triumph of intelligence
over irrational impulses and barbarous propensities. Its publication
marks an era in the history of nations, for out of the chaos of lawless
and unreasoning strife it created a system of illuminating principles
to light the way of sovereigns and peoples in the paths of peace and
general concord.
I. THE REIGN OF WAR.
The idea of peaceful equity among nations, now accepted as a human
ideal, though still far from realization, was for ages a difficult, if
not an impossible, conception. All experience spoke against it, for war
was the most familiar phenomenon of history.
Among the Greek city-states, a few temporary leagues and federations
were attempted, but so feeble were the bonds of peace, so explosive
were the passions which led to war, that even among the highly
civilized Hellenic peoples, community of race, language, and religion
was powerless to create a Greek nation. It was reserved for the
military genius of Alexander the Great, at last, by irresistible
conquest, to bring the Greek Empire into being, to be destroyed in turn
by superior force.
The Roman Empire almost achieved the complete political unity of
Europe, and bound parts of three continents under one rule, but the
corruption of the military power which held it together led to its
inevitable dismemberment.
After the conflicts of the barbaric kingdoms which followed the
dissolution of the Western Empire were ended by the predominance of the
Frankish monarchy, the world believed that the _Pax Romana_ was to be
restored in Europe by the hand of Charles the Great; but the disruptive
forces were destined to prevail once more, and the Holy Roman Empire
never succeeded in reviving the power of ancient Rome. And thus the
dream of a universal monarchy, of a central authority able to preside
over kings and princes, adjusting their difficulties, and preserving
the peace between them, was at last proved futile.
In each of the great national monarchies that had already risen or were
still rising on the ruins of imperial dominion, particularly in France,
England, Holland, and the States of Germany, a continuous internal
conflict over questions of religion complicated the bitterness and
destructiveness of foreign wars until Europe was reorganized by the
Peace of Westphalia, in 1648.
It was in the midst of these wars that Grotius was born. He saw his own
country rising from a baptism of blood and all Europe rent and torn by
the awful struggle of the Thirty Years' War, in the midst of which his
great work was written and to whose conclusion it served as a guide
and inspiration. The Empire, dismembered, had been reduced to almost
complete impotence, the Church had been disrupted, and no international
authority was anywhere visible. Amid the general wreck of institutions
Grotius sought for light and guidance in great principles. Looking
about him at the general havoc which war had made, the nations hostile,
the faith of ages shattered, the passions of men destroying the
commonwealths which nourished them, he saw that Europe possessed but
one common bond, one vestige of its former unity,--_the human mind_. To
this he made appeal and upon its deepest convictions he sought to plant
the Law of Nations.
II. THE PREDECESSORS OF GROTIUS.
It is historically accurate to say, that, until formulated by Grotius,
Europe possessed no system of international law. Others had preceded
him in touching upon certain aspects of the rights and duties of
nations, but none had produced a system comparable to his.
The earliest attempt to formulate recognized international customs
was the formation of the early maritime codes, rendered necessary by
the expansion of mediæval commerce from the end of the eleventh to
the end of the sixteenth century, such as the "_Jugemens d' Oléron_,"
adopted by the merchants of France, England, and Spain, and reissued
under other names for the merchants of The Netherlands and the Baltic.
"_The Consolato del Mare_," a more elaborate compilation, was made,
apparently at Barcelona, about the middle of the fourteenth century,
and accepted generally by the traders of the chief maritime powers. It
was in the cradle of commerce, therefore, that international law awoke
to consciousness.
As the Church was often intrusted with the task of pacification, it
is but natural to look among her representatives for the earliest
writers on the laws of international relations. It is, in fact, among
the theological moralists that we find the first students of this
subject. As early as 1564, a Spanish theologian, Vasquez, conceived
of a group of free states with reciprocal rights regulated by _jus
naturale et gentium_, without regard to a world-power, either imperial
or ecclesiastical. In 1612, Saurez pointed out that a kind of customary
law had arisen from the usages of nations, and distinctly described a
society of interdependent states bound by fundamental principles of
justice.
At the close of the fifteenth and the beginning of the sixteenth
centuries, a series of circumstances arose necessitating the extension
of jurisprudence beyond its ancient boundaries, and thus tending to
produce a group of international jurists. Among the juristic writers
of this time are Balthazar Ayala, a Spanish jurisconsult, who died in
1584, having written in a historico-judicial spirit on the subject
of war in his "_De Jure et Officiis Belli_"; Conrad Brunus, a German
jurist, who wrote of the rights and duties of ambassadors in his
"_De Legationibus_," published in 1548; and pre-eminent above all,
Albericus Gentilis, an Italian professor of jurisprudence and lecturer
at Oxford, a writer of force and originality, who published his "_De
Legationibus_" in 1583 and his "_De Jure Belli_" in 1589.
III. THE LIFE AND PERSONALITY OF GROTIUS.
HUGO GROTIUS, to use the Latin form of his name by which he is best
known, or Hugo de Groot as he is called in Holland, descended from a
race of scholars and magistrates, was born at Delft, on April 10th,
1583. His family history has been related with much detail by De
Burigny, in his "_Vie de Grotius_," published in French at Amsterdam
in 1754; and by Vorsterman van Oyen, in his "_Hugo de Groot en Zijn
Gesclacht_," a complete genealogy in Dutch, published at Amsterdam
in 1883, which gives the descendants of Grotius down to the present
generation. His origin is traced from a French gentleman, Jean Cornets,
who took up his residence in The Netherlands in 1402. His descendant,
Cornelius Cornets, married the daughter of a burgomaster of Delft on
condition that the future children of this marriage should bear the
name of their mother's family, in order to perpetuate the distinction
which it had achieved. The maternal name imposed by Cornelius Cornets's
Dutch father-in-law, Dirk van Kraayenburg de Groot, was de Groot,
meaning the Great, and is said to have been bestowed for signal
services rendered to his country by the first who had borne it four
hundred years before. From this marriage sprung a Hugo de Groot,
distinguished for his learning in Greek, Latin, and Hebrew and five
times burgomaster of his native city. His eldest son, Cornelius, was a
noted linguist and mathematician who studied law in France and received
high office in his own country, afterward becoming a professor of law
and many times rector of the University of Leyden. Another son, John
de Groot, the father of Hugo Grotius, studied there under the famous
Lipsius, who speaks of him with the highest commendation. Four times
burgomaster of Delft, John de Groot became curator of the University of
Leyden, a position which he filled with great dignity and honor.
In his earliest years the young Hugo gave evidence of marked and varied
ability. At eight he wrote Latin verses which betrayed poetic talent;
at twelve he entered the University where he became a pupil of that
prince of scholars, Joseph Scaliger, who directed his studies; and
at fifteen he defended "with the greatest applause" Latin theses in
philosophy and jurisprudence. His fame as a prodigy of diversified
learning spread far and wide, and great scholars declared they had
never seen his equal.
Grotius had won celebrity even in foreign lands when, in 1600, at the
age of seventeen, he was admitted to the bar. The youthful prodigy
had already accompanied the Grand Pensionary, John of Oldenbarneveld
on a special embassy to France, where he was presented to Henry IV,
who bestowed upon him his portrait together with a gold chain, and
graciously called him "The Miracle of Holland." At Orleans he was made
a Doctor of Laws.
Married in 1609 to Marie van Reigersberg, whose devotion was worthy of
his deep affection, and loaded with public honors, having been named
the official historian of the United Provinces and the advocate-general
of two provinces, Holland and Zeeland, Grotius set his hand to a work
entitled "_Mare Librum_," in which he defended the freedom of the sea
and the maritime rights of his country against the arrogant pretensions
of the Portuguese in suppressing the commerce of other nations in
Eastern waters,--a treatise destined to become still more celebrated in
the history of international law by Selden's reply, "_Mare Clausum_,"
written in 1635. Next, turning his attention to the history of The
Netherlands, he devoted himself for a time to his "Annals of the War of
Independence."
In 1613, Grotius added to his laurels as poet, jurist, and historian
by entering the field of politics, and he was appointed Pensionary of
Rotterdam upon the condition that he should continue in office during
his own pleasure. It was during a visit to England upon a diplomatic
mission in this same year that he met the great scholar Isaac Casaubon,
who said in a letter to Daniel Heinsius: "I cannot say how happy I
esteem myself in having seen so much of one so truly great as Grotius.
A wonderful man! This I knew him to be before I had seen him; but the
rare excellence of that divine genius no one can sufficiently feel who
does not see his face and hear him speak. Probity is stamped on all his
features."
Closely related by personal friendship as well as by his official
duties to the Grand Pensionary, John of Oldenbarneveld, Grotius was
destined to share with that unfortunate patriot the proscription and
punishment which Maurice of Orange visited upon the two confederates
in the defense of religious tolerance. Risking all as the apostles of
peace, they were soon condemned to be its martyrs. Oldenbarneveld,
having incurred the bitter hatred of the Stadtholder, was condemned
to death by decapitation on May 12th, 1619. Grotius, less offensive
to Maurice on account of his youth and his gracious personality, was
sentenced six days later to perpetual imprisonment. On the 6th of June,
1619, he was incarcerated in the fortress of Loevestein.
Rigorously treated at first, his docility and resignation soon won the
respect and affection of his keepers. Writing materials and books were
in time accorded him, and finally, on condition that she would continue
to share his captivity, he was granted the presence of his wife. The
studious prisoner and his devoted companion completely disarmed all
suspicion of an intention to escape, and the ponderous chest in which
books came and went continued to bring periodic consolation to the
mind of the busy scholar. A treatise on the truth of the Christian
religion, a catechism for the use of his children, a digest of Dutch
law, and other compositions served to occupy and alleviate the weary
months of confinement, until one day when the time seemed opportune
Madame Grotius secretly inclosed her husband in the great chest and
it was borne away by two soldiers. Descending the stone steps of the
prison the bearers remarked that the trunk was heavy enough to contain
an Arminian, but Madame Grotius's jest on the heaviness of Arminian
books smoothed over the suspicion, if one was really entertained, and
the great jurist was sent in the chest safe to Gorcum, attended by a
faithful domestic, where in the house of a friend the prisoner emerged
without injury and in the guise of a stone mason hastened to Antwerp.
From Antwerp he took refuge in France, where he arrived in April, 1621,
and was joined by his faithful wife at Paris in the following October.
The bitterness of exile was now to be added to the miseries of
imprisonment, for Grotius was not only excluded from The Netherlands,
but in extreme poverty. His letters reveal his anguish of spirit at
this period, but a generous Frenchman, Henri de Même, placed his
country house at Balagni at his disposition, and there, supported by
a small pension, which Louis XIII had graciously accorded him, though
irregularly and tardily paid, Grotius commenced his great work, "_De
Jure Belli ac Pacis_," in the summer of 1623.
Much speculation has been indulged in regarding the causes which led
to the composition of this masterpiece, but a recent discovery has
rendered all this superfluous, as well as the ascription of special
merit to the Counselor Peyresc for suggesting the idea of the work. It
is, indeed, to the pacific genius of Grotius more than to all other
causes that the world owes the origin of his great work; for it sprang
from his dominant thought, ever brooding on the horrors of war and
the ways of peace, during more than twenty years, and never wholly
satisfied till its full expression was completed.
In the winter of 1604, there had sprung out of his legal practice the
idea of a treatise entitled "_De Jure Praedae_," fully written out,
but never printed by its author. The manuscript remained unknown by
all his biographers until it was brought to light and printed under
the auspices of Professor Fruin at The Hague in 1868. This interesting
document proves that not only the general conception but the entire
plan and even the arrangement of the "_De Jure Belli ac Pacis_" were
in the mind of Grotius when he was only twenty-one years of age. The
difference between the earlier work and the later is chiefly one of
detail and amplification, the difference which twenty years of reading,
experience, meditation and maturity of faculty would inevitably create.
The curious may find in his letters the almost daily chronicle of his
progress with his book to the time of its publication after excessive
labors lasting more than a year. In March, 1625, the printing of the
first edition, which had occupied four months, was completed and copies
were sent to the fair at Frankfort. His honorarium as author consisted
of two hundred copies, many of which he presented to his friends. From
the sale of the remainder at a crown each, he was not able to reimburse
his outlay. In the following August he wrote to his father and brother
that if he had their approbation and that of a few friends, he would
have no cause for complaint but would be satisfied. Louis XIII, to
whom the work was dedicated, accepted the homage of the author and
a handsomely bound copy, but failed to exercise the grace customary
with monarchs by according a gratification. At Rome, the treatise was
proscribed in the index in 1627. Almost penniless and suffering from
his protracted toil, Grotius seemed destined to neglect and oblivion,
yet from his exile he wrote to his brother: "It is not necessary to ask
anything for me. If my country can do without me, I can do without her.
The world is large enough...."
Invited to enter the service of France by Richelieu, Grotius would not
accept the conditions which the Cardinal wished to impose,--such at
least is the inevitable inference from his letters. His pension was not
paid and his circumstances became so serious that one of his children
had but a single coat. At length, pushed to the utmost extremity
of want and instigated by his energetic wife, Grotius resolved to
return to Holland. Driven from Rotterdam to Amsterdam, where he
hoped to settle down as a lawyer, the States General twice ordered
his arrest and named a price for his delivery to the authorities.
The new Stadtholder, Frederick Henry, who, before succeeding his
brother Maurice, had written kindly to Grotius after his escape from
imprisonment, now approved his proscription. Abandoned by his prince
as well as by his countrymen, Grotius once more turned his face toward
exile and set out for Hamburg.
IV. THE WORK OF GROTIUS.
It may be of interest at this point in the career of Grotius to
describe briefly the character of the great work which was soon to win
for him a new celebrity, and materially change his prospects in life.
The inspiration of his "_De Jure Belli ac Pacis_" was the love of
peace, yet he was far from being one of those visionaries who totally
condemn the use of armed force and proscribe all war as wrong and
unnecessary. On the contrary, he seeks to discover when, how, and by
whom war may be justly conducted.
His plan of treatment is as follows:--
In the First Book, he considers whether any war is just, which leads
to the distinction between public and private war, and this in turn
to a discussion of the nature and embodiment of sovereignty.
In the Second Book, the causes from which wars arise, the nature
of property and personal rights which furnish their occasions, the
obligations that pertain to ownership, the rule of royal succession,
the rights secured by compacts, the force and interpretation of
treaties, and kindred subjects are examined.
In the Third Book, the question is asked, "What is lawful war?"
which prepares for the consideration of military conventions and the
methods by which peace is to be secured.
From the authority of the Empire and the Church, no longer effectual as
an international agency, Grotius appeals to Humanity as furnishing the
true law of nations. Beginning with the idea that there is a kinship
among men established by nature, he sees in this bond a community
of rights. The society of nations, including as it does the whole
human race, needs the recognition of rights as much as mere local
communities. As nations are but larger aggregations of individuals,
each with its own corporate coherence, the accidents of geographic
boundary do not obliterate that human demand for justice which springs
from the nature of man as a moral being. There is, therefore, as a
fundamental bond of human societies a Natural Law, which, when properly
apprehended, is perceived to be the expression and dictate of right
reason. It is thus upon the nature of man as a rational intelligence
that Grotius founds his system of universal law.
As this law of human nature is universally binding wherever men exist,
it cannot be set aside by the mere circumstances of time and place,
whence it results that there is a law of war as well as a law of peace.
As this law applies to the commencement of armed conflicts, war is
never to be undertaken except to assert rights, and when undertaken
is never to be carried on except within the limits of rights. It is
true that in the conflict of arms laws must be silent, but only CIVIL
laws, which govern in times of peace. Those laws which are PERPETUAL,
which spring from the nature of man as man, and not from his particular
civil relations, continue even during strife and constitute the laws of
war. To deny these, or to disobey them, implies a repudiation of human
nature itself and of the divine authority which has invested it with
rights and obligations. To disavow the imperative character of these
perpetual laws, is to revert to barbarism.
It is necessary, however to distinguish between Natural Law, that
principle of justice which springs from man's rational nature, and
Conventional Law, which results from his agreements and compacts.
Natural Law remains ever the same, but institutions change. While the
study of abstract justice, apart from all that has its origin in the
will or consent of men, would enable us to create a complete system of
jurisprudence, there is another source which must not be neglected,
since men have established the sanctity of certain rules of conduct by
solemn convention.
The Law of Nations does not consist, therefore, of a mere body of
deductions derived from general principles of justice, for there is
also a body of doctrine based upon CONSENT; and it is this system of
voluntarily recognized obligations which distinguishes international
jurisprudence from mere ethical speculation or moral theory. There are
CUSTOMS of nations as well as a universally accepted law of nature, and
it is in this growth of practically recognized rules of procedure that
we trace the evolution of law international--_jus inter gentes_--as a
body of positive jurisprudence.
It is evident that the mind of Grotius is continually struggling to
establish a science upon this positive basis, and it is this which
gives a distinctive character to his effort. The great writers of all
ages are cited with a superfluous lavishness, not so much to support
his claims by an aggregation of individual opinions--still less to
display his erudition, as his critics have sometimes complained--as to
give a historic catholicity to his doctrine by showing that the laws
he is endeavoring to formulate have, in fact, been accepted in all
times and by all men. For this purpose also, he makes abundant use of
the great authorities on Roman Law, whose doctrines and formulas were
certain to carry conviction to the minds of those whom he desired to
convince.
It is needless, perhaps, to point out that the work of Grotius is
not and could not be a work of permanent authority as a digest of
international law. His own wise appreciation of the positive and
historical element--the authority derived from custom--should exempt
him from the pretense of absolute finality. It is the Book of Genesis
only that he has given us, but it is his indefeasible distinction to
have recorded the creation of order out of chaos in the great sphere of
international relationship, justly entitling him to the honor accorded
to him by the spontaneous consent of future times as the Father of
International Jurisprudence.
It is not difficult after more than three centuries of thought and
experience to point out the defects in his doctrine. If he justifies
slavery, it is not without ingenuity; for, he argues, if a man may sell
his labor, why not his liberty? and if the conqueror may impose his
will upon the property of the vanquished, why not also upon his person?
If he identifies sovereignty with supreme power without any adequate
conception of its ethical basis, he is at least as advanced in his
thinking as the conceptions of his time, which had not yet grasped the
idea of the state as a moral organism. If he has no adequate notion
of neutrality, believing it to be the duty of a nation to enlist its
energies for what it deems the right side, rather than to disavow all
responsibility for actions foreign to its own interests, he is at least
supported in this by the opinion of the multitude even at the present
time; and even among jurists the modern conception of neutrality is
hardly a century old. If the new schools of jurisprudence make light
of Natural Law as a foundation of public and private rights, it is
not certain that Grotius may not yet be vindicated as representing a
doctrine at least as clear as any other which has been substituted for
it. But, finally, to all these criticisms it may be answered, that
no great thinker can be justly estimated except in relation to his
predecessors and contemporaries. Measured by these, Grotius stands
alone among the jurists of his century for originality of thought and
power of exposition.
V. THE INFLUENCE OF GROTIUS'S WORK.
It was during his sojourn in Hamburg in 1633, eight years after the
publication of his "_De Jure_," and while he was still suffering from
painful pecuniary embarrassment, that Europe suddenly awoke to a sense
of his importance; and, almost at one time, Poland, Denmark, Spain,
England, and Sweden all extended friendly invitations urging him to
enter into their public service. His fame as a jurist had become
international and, rudely repelled by his native Holland, he became
the center of European interest. Gustavus Adolphus had placed the work
of Grotius along side his Bible under his soldier's pillow, as he
prosecuted his campaigns in the Thirty Years' War. The first edition
of that work, written in Latin, the cosmopolitan language of learned
Europe, had been quickly exhausted and widely scattered. Another had
soon been called for at Paris, but the death of Buon, the publisher,
created obstacles to its appearance. A second edition had appeared at
Frankfort in 1626, another at Amsterdam in 1631, and still another
with notes by the author in 1632. The book had aroused the thought of
kings as well as of scholars, and in the circles of high influence
everywhere in Europe the name of Grotius had become well known. His
book had excited the most opposite sentiments and awakened the most
contradictory judgments, but among lawyers and statesmen its reception
was from the first generally marked by admiration. In spite of exile,
poverty, and misfortune, Grotius had become a European celebrity and
was about to enter into the reward of his labors. He had created a code
for war and a programme of peace, and henceforth no statesman could
afford to neglect him.
Gustavus Adolphus, the king of Sweden, before his death on the
battlefield of Lützen, had commended Grotius to his great Chancellor,
Oxenstiern. By the death of Gustavus the Chancellor had, in 1633,
recently come into the regency of the kingdom at a critical moment
when a retreat from the bitter contest with the Empire seemed to be
foredoomed unless prevented by the support and friendship of France.
Recalling the commendation of the late king, Oxenstiern sought
and found in Grotius an ambassador of Sweden to negotiate a new
Franco-Swedish alliance. Accepting this appointment in 1634, Grotius
arrived at Paris on his diplomatic mission on March 2d, 1635.
Richelieu, having failed to draw the great jurist into the orbit of his
influence as a satellite, resented his appearance in a character so
influential and honorable as that of ambassador of Sweden, and Grotius
made little progress in his negotiation. Preoccupied with literature,
he took more interest in the composition of a sacred tragedy on "The
Flight into Egypt" than in reminding France of the existing treaty
of Heilbronn or consolidating the new Franco-Swedish alliance. Where
Grotius the theorist failed, Oxenstiern, the practical statesman, by
a few dexterous strokes of diplomacy during a brief visit to Paris,
easily succeeded; and the ambassador's mission was simplified to the
rôle of a mere observer and reporter of occurrences.
By taste, nature, and training, Grotius was a jurist and not a
diplomatist, and he soon realized that the two vocations, if not
diametrically opposed, are at least separated from each other by a vast
interval. His diplomatic correspondence betrays the keen observer and
the conscientious moralist rather than the accomplished negotiator.
Among the observations recorded in his dispatches, one may be quoted as
an example of his penetration and his humor. Speaking of the Dauphin,
the future Louis XIV, he says: "His frightful and precocious avidity is
a bad omen for neighboring peoples; for he is at present on his ninth
nurse, whom he is rending and murdering as he has the others!"
It is painful to behold the great father of international jurisprudence
descending in his dispatches to petty details of precedence and
alienating from himself the sympathies of his colleagues by ridiculous
ceremonial pretensions. He would no longer visit Mazarin, because
the Cardinal insisted on calling him EMINENCE instead of EXCELLENCE;
Grotius considering this distinction of terms a slight upon his rank as
ambassador. So persistent was he in these follies and so rancorous were
the feuds that the apostle of peace elicited that, in December, 1636,
less than two years after his arrival at Paris, he advised Sweden to
send to France a simple _Chargé d'Affaires_, instead of an ambassador,
in order to restore diplomatic relations.
His quarrels concerning precedence, which rendered him an object
of ridicule at the French Court, were not the only griefs of the
ambassador of Sweden. Inadequately recompensed, he was obliged to wait
two years for his salary and finally, being reduced to a condition
in which he could no longer maintain existence otherwise, he was
compelled to demand of the royal treasury of France a part of the
subsidies promised to the army of his adopted country. Weary of his
importunities, the French government repeatedly requested his recall.
Disgusted with his mission, Grotius at last abandoned the duties of his
office to the intriguing adventurer, Cerisante, who was sent to aid
him, and buried himself in his books until his return to Sweden at his
own request in 1645.
Queen Christina of Sweden, a patroness of scholars, desirous of aiding
Grotius and of retaining him in the service of her kingdom, made many
offers and promises, but their execution being deferred, he became
impatient of his lot, refused a position as counselor of state, and
resolved to leave the country. His plan to abandon Stockholm secretly
was prevented by a messenger of the queen who followed him to the port
where he intended to embark and induced him to return for a farewell
audience. With a handsome present of money and silver plate he took
passage on a vessel placed at his disposition to convey him to Lübeck.
Off the coast near Dantzic a violent tempest arose. On the 17th of
August, 1645, the vessel was driven ashore and Grotius, overcome by his
trying experiences, was taken ill at Rostock, where a few days later he
passed away.
The later years of his life had been chiefly devoted to plans for the
establishment of peace in the religious world, whose dissensions gave
him great distress of mind.
The country of his birth, which had so long denied him citizenship,
received him at last to the silent hospitality of the tomb. His body
was taken to Delft, his native town, where his name is now held in
grateful reverence.
At the time when Grotius left Stockholm, the last of the
plenipotentiaries had arrived at Münster and Osnabrück to attend the
great European congress convoked to terminate the hostilities of the
Thirty Years' War. It is a tradition, but incapable of satisfactory
proof, that it was with the purpose of being present at the councils
of this congress that the author of "_De Jure Belli ac Pacis_" left
Sweden for Germany. However this may be, it is certain that the
mediation of the king of Denmark at Osnabrück and of the papal legate
at Münster, though unsuccessful, was in accordance with the idea of
Grotius expressed in the words: "It would be useful, and indeed it
is almost necessary, that certain congresses of Christian powers
should be held, in which controversies that have arisen among some of
them may be decided by others who are not interested." The immediate
establishment of an international tribunal, evidently contemplated in
this suggestion, was not in harmony with the temper of those times;
but it cannot be doubted that the Peace of Westphalia, whose treaties
were to form a code of public law for Europe, was to a great degree an
embodiment of the principles which Grotius was the first to enunciate.
His "_De Jure Belli ac Pacis_" had already become a classic even before
the author's death, and special professorships were soon founded in
the universities to expound its principles. It would be tedious to
name the numerous editions, translations, and commentaries which have
given it an exceptional place in the literature of Europe. This task
has been in part performed, however, by Dr. Rogge in his "_Bibliotheca
Grotiana_," published at The Hague in 1883, and intended to be a full
bibliography of Grotius's works. The whole number of titles included
is 462, but they do not comprise the writings of the generations of
jurists who have been inspired by the great master or of the critics
and biographers who have discussed his life and work.
Tardily, but with full contrition for the bitter wrong done to one of
her greatest and noblest sons, the memory of Grotius has received from
his native land abundant recognition and commemoration. The appropriate
tomb that marks his resting place in the Nieuwe Kerk at Delft,
symbolical of his learning, genius, and renown, was erected in 1781.
On the 17th of September, 1886, a noble statue of the great jurist was
unveiled in the public square of his native town in front of the church
which contains his tomb. Thus, more than a century after his death,
and again still another century later, Holland has paid her tribute of
respect to her illustrious citizen.
The later years have also brought new honors to Grotius's feet. At
the recent Peace Conference at The Hague was completed the great
structure of international comity whose corner stone was laid by him
in 1625. It was most fitting that an international congress called in
the interest of peace should blend with the negotiation of conventions
for the pacific settlement of disputes between nations by a permanent
tribunal, and for the amelioration of the laws of war, a celebration
of the distinguished writer whose great thought had at last borne
such precious fruits. In pursuance of instructions received from
the Secretary of State, the United States Commission invited their
colleagues in the congress, the heads of the Dutch universities, and
the high civic authorities to join with them in observing the 4th of
July by celebrating the memory of the great jurist. With appropriate
exercises in the apse of the old church, near the monument of Grotius
and mausoleum of William the Silent, the representatives of twenty-six
nations gathered to do him honor. A beautiful commemorative wreath of
silver was laid upon Grotius's tomb bearing the inscription:
TO
THE MEMORY OF HUGO GROTIUS
IN
REVERENCE AND GRATITUDE
FROM THE UNITED STATES OF AMERICA
ON THE
OCCASION OF THE INTERNATIONAL PEACE CONFERENCE
AT
THE HAGUE JULY 4TH, 1899.
An eloquent oration by the Honorable Andrew D. White, Ambassador of the
United States to Germany, and the head of the Commission, followed by
other appropriate addresses, recalled the debt of mankind to the author
of "_De Jure Belli ac Pacis_"; and thus the plenipotentiaries of the
nineteenth century did homage to the exile of the sixteenth who had
taught the world that even in the shock and storm of battle humanity
cannot escape the dominion of its own essential laws, and that even
independent states are answerable before the bar of human nature for
obedience to principles imposed by a Power higher than the prerogatives
of princes or the will of nations.
David J. Hill
THE RIGHTS OF WAR AND PEACE, INCLUDING THE LAW OF NATURE AND OF NATIONS.
BOOK I.
CHAPTER I.
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, πολεμος {polemos} commonly used to signify
war, expresses in its original, an idea of multitude. The ancient
Greeks likewise called it λυη {lyê}, which imports a DISUNION of
minds; just as by the term δυη {dyê}, they meant the DISSOLUTION of the
parts of the body. Nor does the use of the word, WAR, contradict this
larger 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 is 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.
IX.[1] 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,[2] 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
δικαιώματα {dikaiômata}, and the latter ἐντολας {entolas}.
X. Natural right is the dictate of right reason, shewing the moral
turpitude, or moral necessity,[3] 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 verses 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. Rom. 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
wilful 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 consent 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. 22. 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, practised 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, Rom. ii. 14. 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. 15. 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. 14.
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, Rom. vii. 12, 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.[4]
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.[5]
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 II.
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. 10,
15. 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. Jud. 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, 1 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 says 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 the 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 ought 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 of 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; not in 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, THOU 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 wilful 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.[6]
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 of 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. 11. 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. 25-30. 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. 31-33. 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? 1 John iii. 16. 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. 21. Numb. xxxv. 16,
17, 30. "Thou shalt not commit adultery," Exod. xx. "whosoever shall
put away his wife, let him give her a writing of divorcement." Deut.
xxiv, 1. "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. 21. "Thou shalt love thy neighbour," that is, an Israelite.
Levit. xix. 18. "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. 11. Deut. vii. 1. To these may be added
the Amalekites, with whom the Israelites were commanded to maintain
irreconcileable war. Exod. xxvii. 19. Deut. xxv. 19.
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. 16, the law of a carnal
commandment, and Rom. iii. 17. 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 Rabbis. 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." 1 Eph. ii. 1, 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. Rom. 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 king, 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. 12. 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.
12. 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, 10. 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 from 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 of 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. 17.
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 of 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, Rom. 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.[7]
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 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 Tertullian, 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, commending a soldier, who
was at the same time a Christian, 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 enlisted 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, "if
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 be 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 a little before observed, "we
are but strangers, yet we 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.[8] 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
of 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.[9] 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 parricides, 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, 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.[10]
CHAPTER III.
THE DIVISION 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 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.
IV.[11] 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 office; 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
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.[12] 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 the Galatians had
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 the war against the Gauls, in which they had
made themselves a party concerned, was just. But Caesar ought to have
contented himself with driving the Germans out of Gaul, the province
assigned him, without pursuing them into their own country, especially
as there was no farther danger to be apprehended from them; unless he
had 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.[13] 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 rights
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 himself 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 HIPPOCRATE ET PLATONIS, the first power of the
state.
VIII. And here is the proper place for refuting the opinion of those,
who maintain that, everywhere 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, "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 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 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 power is lodged in
the people, sometimes in a senate composed of the 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 Herodotus, 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. He
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
the 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 dependents, 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 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 ears; 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 not the
nature of a right, although it would undoubtedly abridge its dignity,
and diminish its splendour.[14]
BOOK II.
CHAPTER I.
DEFENCE OF PERSON AND PROPERTY.
Causes of War--Defence of person and property--What are called
justifiable causes of war--Justifiable causes of War are
Defence, recovery of one's property or debt, or the punishment
of offences committed--War for defence of life, justifiable, and
lawful--This kind of war lawful against an aggressor only--The
danger must be present and real, not an imaginary danger--Lawful
to kill any one attempting to maim one's person, or violate one's
chastity--Occasions where this right may be lawfully waved--This
right to be waved particularly with respect to the person of the
Sovereign, which is sacred and inviolable--Homicide in defence of
one's property allowed by the law of nature--How far homicide is
permitted by the law of Moses--Self-defence in public war--Not
lawful to attack any power solely on account of its increasing
greatness--The hostile measures of an aggressor, not to be
justified on the plea of self-defence.
I. The causes of war by which are meant the justifiable causes, are
now to be considered. For in some cases motives of interest operate
distinctly from motives of justice. Polybius accurately distinguishes
these motives from each other, and from the beginning of the war, or
that which gave occasion to the first acts of hostility; as was the
case when Ascanius wounded the stag, which gave rise to the war between
Turnus and Aeneas. But though there is an actual distinction between
the justifiable causes, the pretexts, and the beginning of war; yet
the terms used to express them are often confounded. For what we call
justifiable causes, Livy, in the speech which he has put into the mouth
of the Rhodians, calls beginnings. The Rhodian deputies said, "You
Romans profess to believe that your wars are successful, because they
are just; nor do you boast so much of their victorious issue, as of
the just principles, upon which you make them." In which sense Aelian
styles them ἀρχας πολεμων {archas polemôn} and Diodorus Siculus,
in speaking of the war of the Lacedaemonians against the Eleans gives
them the name of προφασεις {prophaseis} and ἀρχας {archas}.
The principal drift of our argument rests upon these justifiable
causes, to which the sentiment of Coriolanus in Dionysius of
Halicarnassus, particularly applies, he says, "in the first place, I
beseech you to consider how you may find pious and just pretexts for
the war." And Demosthenes in his second Olynthiac, makes a similar
observation, "I think, _says he_, that as in a ship, or house, or any
other fabric, the lowest parts ought to be the strongest; so in all
political measures the motives and pretexts ought to be laid deeply
in the principles of truth and justice." The following language of
Dion Cassius is no less applicable to the question. "Justice must be
made the principal ground of our actions. For with such support there
is the best hope of success to our arms. But without that, any point
which may be gained for the moment has no firm ground to rest upon."
To which may be added, the words of Cicero, who maintains those wars
to be unjust, which are made without sufficient cause. And in another
place, he reproves Crassus for having intended to pass the Euphrates,
when there was no cause of war. Which is no less true of public than of
private wars. Hence come the complaints of Seneca, "Why do we restrain
homicide, and the murder of individuals, but glory in the crime of
slaughter, which destroys whole nations? Avarice and cruelty know not
any bounds. By decrees of the Senate, and of the people cruel acts are
authorized, and measures, which are pursued by order of the state, are
forbidden to individuals." Wars indeed undertaken by public authority
are attended with certain effects of right, and have the sanction of
opinion in their favour. But they are not the less criminal, when made
without just cause. For which reason Alexander was not improperly
styled a robber by the Scythian ambassadors, as may be seen in Quintus
Curtius. Seneca and Lucan give him the same appellation; the Indian
sages call him a madman; and a pirate once presumed to rank him with
his own class. Justin speaks of Philip in the same terms, who, _says
he_, in deciding a dispute between two rival kings, stripped both
of their dominions with all the treachery and violence of a robber.
Augustin has a pertinent remark on this subject. He says, what are
unjustly acquired dominions, but the spoils of robbery? In the same
strain, Lactantius says, "Men, captivated with the appearances of vain
glory, give the names of virtues to their crimes." Injury, or the
prevention of injury forms the only justifiable cause of war. "And, _in
the language of the same Augustin_, all the evil consequences of war
are to be laid at the door of the aggressor." Thus the Roman Herald in
a declaration of war makes a solemn appeal against the aggressor, as
having violated the laws of nations, and refused proper satisfaction.
II. The grounds of war are as numerous as those of judicial actions.
For where the power of law ceases, there war begins. Now there are
methods in law to prevent intended injuries, as well as actions for
those actually committed. For CIVIL INJURIES various methods of
redress, or prevention are appointed by the law; and by the same
power securities are provided to prevent the commission of crimes and
misdemeanors. In civil cases, the party aggrieved may recover damages
for the injuries sustained; and in crimes, which are offences against
the public, the aggressor must submit to actual punishment. Plato, in
his ninth book on laws, very properly makes the same distinction, as
Homer had done before him.
Now reparation or indemnity relates to what either does or did belong
to us; which gives rise to real and personal actions. These ascertain
our right to the damages, which are our due, either from an agreement,
or from an injury received. A right which is termed in law a right by
contract, or injury. Crimes, which are offences against society, are
prosecuted by indictment, that is by an accusation in the name of the
sovereign.
The justifiable causes generally assigned for war are three, defence,
indemnity, and punishment, all which are comprised in the declaration
of Camillus against the Gauls, enumerating all things, which it is
right to defend, to recover, and the encroachment on which it is right
to punish.
There is an omission in this enumeration, unless the word recover be
taken in its most extensive sense. For recovering by war what we have
lost, includes indemnity for the past, as well as the prosecution of
our claim to a debt. Plato has not omitted to notice this distinction,
for he has said, "that wars are made to punish not only oppression or
robbery, but also fraud and deception." With whom Seneca agrees; for
to command payment of what you owe, he calls, "an equitable sentence,
stamped with the authority of the law of nations." Indeed the form
which was prescribed for the Roman heralds to use in declarations
of war, bears exactly the same import. For therein the aggressor is
charged with having neither given, paid, nor done what was due. Sallust
in one of his fragments, has made a Tribune, in his harangue to the
people, say, "As a final settlement of all discussions, I demand
restitution according to the law of nations."
St. Augustin, in defining those to be just wars, which are made to
avenge injuries has taken the word avenge in a general sense of
removing and preventing, as well as punishing aggressions. This appears
to be his meaning from the following sentence of the passage, in which
he does not enumerate the particular acts, which amount to injury,
but adds, by way of illustration, that "the state or nation, which
has neglected to punish the aggressions of its own subjects, or to
make reparation for the losses occasioned by those aggressions, is
a proper object of hostility and attack." Prompted by this natural
knowledge of right and wrong, the Indian King, as we are informed by
Diodorus, accused Semiramis of having commenced war against him without
having received any injury. Thus the Romans expostulated with the
Senones, that they ought not to attack a people who had given them no
provocation. Aristotle in the second book and second chapter of his
Analytics, says, war generally is made upon those who have first done
an injury. Quintus Curtius describes the Abian Scythians, as the best
acquainted with the principles of justice of any of the Barbarians. For
they declined having recourse to arms, unless provoked by aggression.
A just cause then of war is an injury, which though not actually
committed, threatens our persons or property with danger.
III. It has already been proved that when our lives are threatened with
immediate danger, it is lawful to kill the aggressor, if the danger
cannot otherwise be avoided: an instance, as it has been shewn, on
which the justice of private war rests. We must observe that this kind
of defence derives its origin from the principle of self-preservation,
which nature has given to every living creature, and not from the
injustice or misconduct of the aggressor. Wherefore though he may be
clear of guilt, as for instance a soldier in actual service, mistaking
my person for that of another, or a madman in his frenzy, or a man
walking in his sleep, none of these cases deprive me of the right of
self-defence against those persons. For I am not bound to submit to the
danger or mischief intended, any more than to expose myself to the
attacks of a wild beast.
IV. It admits of some doubt, whether those, who unintentionally
obstruct our defence, or escape, which are necessary to our
preservation, may be lawfully maimed or killed. There are some, even
Theologians, who think they may. And, certainly if we look to the law
of nature alone, according to its principles, our own preservation
should have much more weight with us, than the welfare of society. But
the law of charity, especially the evangelical law, which has put our
neighbour upon a level with ourselves, does not permit it.
Thomas Aquinas, if taken in a right sense, has justly observed, that in
actual self-defence no man can be said to be purposely killed. Indeed,
it may some times happen that there is no other way for a person to
save himself, than by designedly doing an act, by which the death of
an aggressor must inevitably ensue. Yet here the death of any one was
not the primary object intended, but employed as the only means of
security, which the moment supplied. Still it is better for the party
assaulted, if he can safely do it, to repel or disable the aggressor
than to shed his blood.
V. The danger must be immediate, which is one necessary point. Though
it must be confessed, that when an assailant seizes any weapon with an
apparent intention to kill me I have a right to anticipate and prevent
the danger. For in the moral as well as the natural system of things,
there is no point without some breadth. But they are themselves much
mistaken, and mislead others, who maintain that any degree of fear
ought to be a ground for killing another, to prevent his SUPPOSED
intention. It is a very just observation made by Cicero in his first
book of Offices, that many wrongs proceed from fear; as when the
person, who intends to hurt another, apprehends some danger to himself
unless he took that method. Clearchus, in Xenophon, says, I have known
some men, who partly through misrepresentation, and partly through
suspicion, dreading one another, in order to prevent the supposed
intentions of their adversaries, have committed the most enormous
cruelties against those who neither designed, nor wished them any harm.
Cato in his speech for the Rhodians, says, "Are we to prevent them by
doing first, what we say they intended to do to us?" On this subject
there is a remarkable passage in Aulus Gellius, "When a Gladiator
prepares to enter the lists for combat, such is his lot that he must
either kill his adversary, or be killed himself. But the life of man is
not circumscribed by the hard terms of such an over-ruling necessity,
as to oblige him to do an injury to prevent him from receiving one."
Quintilian has quoted a passage from Cicero, wherein the orator asks,
"Whoever made such a decision, or to whom could such a point be yielded
without the most imminent danger, that you have a right to kill the
person, by whom you say, you fear that you shall afterwards be killed
yourself?" To which this passage of Euripides, may be applied, "If your
husband, as you say, intended to have killed you, you ought to have
waited, till he actually did make the attempt." Conformably to which
Thucydides, in the first book of his history, has expressed himself in
the following terms, "The issue of war is uncertain, nor ought we to
be so far transported by our fears, as to engage in immediate and open
hostilities." The same writer too in his luminous description of the
dangerous factions, that had arisen in the Grecian states, condemns the
approbation bestowed on the person, that injured or destroyed another
from whom he himself apprehended injury or destruction."
Livy says, "Men, to guard against their alarms, make themselves objects
of terror; averting the danger from their own heads, by imposing upon
others the necessity of either doing or suffering the evil which they
themselves fear." Vibius asked a person, that appeared armed in the
forum, "Who gave you permission to shew your fear in this manner?" A
question not inapplicable to the present subject, and much commended
by Quintilian. Livia also in Dion says, that great infamy redounds to
those, who by anticipation perpetrate the criminal act, which they fear.
Now if any one intend no immediate violence, but is found to have
formed a conspiracy to destroy me by assassination, or poison, or by
false accusation, perjury, or suborned witnesses, I have no right to
kill him. For my knowledge of the danger may prevent it. Or even if
it were evident that I could not avoid the danger without killing
him; this would not establish my right to do so. For there is every
presumption that my knowing it will lead me to apply for the legal
remedies of prevention.
VI. and VII. The next thing to be considered is, what must be said upon
the mutilation of a limb. Now, as the loss of a limb, especially that
of a principal limb in the body, is a grievous detriment, and nearly
equal to the loss of life, to which may be added the probability of
death ensuing from such a calamity; the lawfulness of killing any one,
who makes such an attempt, if the danger cannot otherwise be avoided,
scarce admits of a doubt. Neither is there any more difficulty in
allowing the same right for the personal defence of chastity, the
preservation of which, both in the common estimation of men, and by
the divine law, is deemed of equal value with life itself. We have an
example of this in Cicero, Quintilian, and Plutarch, in the person
of one of Marius's tribunes, who was killed by a soldier. Among the
actions of women, who have defended themselves, Heliodorus records that
of Heraclea, which he calls a just defence of her injured honour.
VIII. Though some, as it has been already said, admit the lawfulness of
killing the person, who attempts with open violence to destroy one's
life, yet they deem it more commendable to spare the life of another,
even at the hazard of one's own. Yet to persons, in whose preservation
the public interest is involved, they will grant an exemption from
this rule of forbearance. Indeed it seems unsafe to impose upon ANY,
whose lives are of importance to others, a rule of forebearance so
contrary to all the principles of all law. This exemption therefore
must be allowed to all vested with any public office, which makes them
responsible for the safety of others; as the generals who conduct
armies, or the rulers of the state, and many others in similar
situations; to whom may be applied the lines of Lucan--"When the lives
and safety of so many nations depend upon yours, and so great a portion
of the world has chosen you for its head; it is cruelty to expose
yourself wilfully to death."
IX. On the other hand it may happen, that the aggressor may be one
whose person is rendered sacred and inviolable by all divine, human,
and natural laws; which is the case with respect to the person of
the Sovereign. For the law of nature regards not only the principles
of STRICT JUSTICE, but comprises other virtues also, as temperance,
fortitude, and discretion, making the observance of them in certain
cases, binding as well as honourable. To observe these we are bound
also by the law of charity.
Nor is the truth of this argument at all weakened by what Vasquez
has advanced, who maintains that the Sovereign who attempts the life
of an individual loses, in reality, the character of Sovereign: a
doctrine fraught with equal absurdity and danger. For sovereignty
cannot any more than property be forfeited by any particular act of
delinquency; unless it has been previously and expressly so enacted by
the fundamental laws of the state. For such a rule of forfeiture, which
would be productive of universal anarchy and confusion, never has been,
nor ever will be established among any civilized people. For the maxim,
"that all government is framed for the benefit of the subject and not
of the Sovereign," which Vasquez and many other writers lay down as a
fundamental law, though it may be generally true in theory, is by no
means applicable to the question. For a thing loses not its existence,
by losing some part of its utility. Nor is there sufficient consistency
in his observation, that every individual desires the safety of the
commonwealth on his own account, and therefore every one ought to
prefer his own safety to that of the whole state. For we wish for the
public welfare not on our own account alone, but also for the sake of
others.
The opinion of those who think that friendship arises from necessity
alone, is rejected as false, by the more sound Philosophers; as we feel
a spontaneous and natural inclination towards friendly intercourse.
Charity indeed often persuades, and in some instances commands us to
prefer the good of many to our own single advantage. To which the
following passage from Seneca is very applicable. "It is not surprising
that princes, and kings, or whatever name the guardians of the public
welfare may bear, should be loved with a veneration and affection, far
beyond those of private friendship. For all men of sober judgment, and
enlarged information deem the public interest of higher moment than
their own. Their attachment therefore must be warmest to the person on
whom the well being and prosperity of the state depends." And to the
same effect, St. Ambrose in his third book of Offices, says, "every
man feels a greater delight in averting public than private danger."
Seneca, the writer already quoted, produces two instances, the one of
Callistratus at Athens, and the other of Rutilius at Rome, who refused
to be restored from banishment thinking it better for two individuals
to suffer hardship, than for the public to be plunged into calamities.
XI.[15] The next object to be considered, relates to injuries affecting
our property. In strict justice, it cannot be denied that we have a
right to kill a robber, if such a step is inevitably necessary to the
preservation of our property. For the difference between the value of
life and property is overbalanced by the horror which a robber excites,
and by the favourable inclination felt by all men towards the injured
and innocent. From whence it follows, that regarding that right alone,
a robber may be wounded or killed in his flight with the property, if
it cannot otherwise be recovered. Demosthenes in his speech against
Aristocrates, exclaims, "By all that is sacred, is it not a dreadful
and open violation of law, not only of written law, but of that law
which is the unwritten rule of all men, to be debarred from the right
of using force against the robber as well as against the enemy; who
is plundering your property?" Nor is it forbidden by the precepts
of charity, apart from all consideration of divine and human law,
unless where the property is of little value, and beneath notice; an
exception, which some writers have very properly added.
XII. The sense of the Jewish law on this point is now to be considered.
The old law of Solon, to which Demosthenes, in his speech against
Timocrates, appeals, agrees with it. From hence the substance of
the TWELVE TABLES, and Plato's maxim in his ninth book of laws were
taken. For they all agree in making a distinction between a thief who
steals by day, and the robber, who commits the act by night; though
they differ about the REASON of this distinction. Some think this
distinction arises from the difficulty of discerning by night, whether
an aggressor comes with an intent to murder or steal, and therefore
he ought to be treated as an assassin. Others think the distinction
is made, because as it is difficult to know the person of the thief,
there is less probability of recovering the goods. In neither case
do the framers of laws seem to have considered the question in its
proper light. Their evident intention is to prohibit the killing of
any one, merely on account of our property; which would happen, for
instance, by killing a thief in his flight in order to recover the
goods he had stolen. But if our own lives are endangered, then we are
allowed to avert the danger, even at the hazard of another's life.
Nor is our having run into the danger any objection; provided it was
done to preserve or to recover our goods, or to take the thief. For
no imputation of guilt can attach to us in any of these cases, while
we are employed in doing a lawful act, nor can it be said that we are
doing wrong to another by exercising our own right.
The difference therefore made between a thief in the night and a thief
in the day, arises from the difficulty of procuring sufficient evidence
of the fact. So that if a thief is found killed, the person who says,
that he was found by him with a destructive weapon, and killed by
him in his own defence, will easily gain belief. For the Jewish law
supposes this, when it treats of a thief in the act of piercing, or,
as some translate it, with a stabbing instrument. This interpretation
accords with the law of the twelve tables, which forbids any one to
kill a thief in the day time, except he defend himself with a weapon.
The presumption therefore against a thief in the night is that he
defended himself in such a manner. Now the term weapon comprehends not
only an instrument of iron, but as Caius interprets this law, a club,
or a stone. Ulpian on the other hand, speaking of a thief taken in the
night, says that the person who kills him will incur no guilt, provided
that in saving his property he could not spare his life, without
endangering his own. There is a presumption, as it has been already
observed, in favour of the person who has killed a thief taken in the
night. But if there be evidence to prove, that the life of the person
who killed the thief was in no danger; then the presumption in his
favour fails, and the act amounts to murder.
The law of the twelve tables indeed required, that the person who took
a thief either in the day time, or in the night, should make a noise
that, if possible, the magistrates or neighbours might assemble to
assist him and give evidence. But as such a concourse could more easily
be assembled in the day time than in the night, as Ulpian observes
upon the passage before quoted from Demosthenes, the affirmation of a
person declaring the danger he was in during the night is more readily
believed. To which an additional observation may be made, that, even
under equal circumstances, the danger which happens by night can be
less examined, and ascertained, and therefore is the more terrible.
The Jewish law therefore, no less than the Roman, acting upon the same
principle of tenderness forbids us to kill any one, who has taken our
goods, unless for the preservation of our own lives.
XVI.[16] What has been already said of the right of defending our
persons and property, though regarding chiefly private war, may
nevertheless be applied to public hostilities, allowing for the
difference of circumstances. For private war may be considered as an
instantaneous exercise of natural right, which ceases the moment that
legal redress can be obtained. Now as public war can never take place,
but where judicial remedies cease to exist, it is often protracted,
and the spirit of hostility inflamed by the continued accession of
losses and injuries. Besides, private war extends only to self-defence,
whereas sovereign powers have a right not only to avert, but to punish
wrongs. From whence they are authorised to prevent a remote as well as
an immediate aggression. Though the suspicion of hostile intentions, on
the part of another power, may not justify the commencement of actual
war, yet it calls for measures of armed prevention, and will authorise
indirect hostility. Points, which will be discussed in another place.
XVII. Some writers have advanced a doctrine which can never be
admitted, maintaining that the law of nations authorises one power
to commence hostilities against another, whose increasing greatness
awakens her alarms. As a matter of expediency such a measure may be
adopted, but the principles of justice can never be advanced in its
favour. The causes which entitle a war to the denomination of just are
somewhat different from those of expediency alone. But to maintain
that the bare probability of some remote, or future annoyance from a
neighbouring state affords a just ground of hostile aggression, is a
doctrine repugnant to every principle of equity. Such however is the
condition of human life, that no full security can be enjoyed. The only
protection against uncertain fears must be sought, not from violence,
but from the divine providence, and defensive precaution.
XVIII. There is another opinion, not more admissible, maintaining
that the hostile acts of an aggressor, may be considered in the light
of defensive measures, because, say the advocates of this opinion, few
people are content to proportion their revenge to the injuries they
have received; bounds which in all probability the party aggrieved has
exceeded, and therefore in return becomes himself the aggressor. Now
the excess of retaliation cannot, any more than the fear of uncertain
danger, give a colour of right to the first aggression, which may be
illustrated by the case of a malefactor, who can have no right to wound
or kill the officers of justice in their attempts to take him, urging
as a plea that he feared the punishment would exceed the offense.
The first step, which an aggressor ought to take, should be an offer of
indemnity to the injured party, by the arbitration of some independent
and disinterested state. And if this mediation be rejected, then his
war assumes the character of a just war. Thus Hezekiah when he had not
stood to the engagements made by his ancestors, being threatened with
an attack from the King of Assyria on that account, acknowledged his
fault, and left it to the King to assign what penalty he should pay
for the offence. After he had done so, finding himself again attacked,
relying on the justice of his cause, he opposed the enemy, and
succeeded by the favour of God. Pontius the Samnite, after restoration
of the prizes had been made to the Romans, and the promoter of the war
delivered up into their hands, said, "We have now averted the wrath of
heaven, which our violation of treaties had provoked. But the supreme
being who was pleased to reduce us to the necessity of restoration,
was not equally pleased with the pride of the Romans, who rejected our
offer. What farther satisfaction do we owe to the Romans, or to Heaven,
the arbiter of treaties? We do not shrink from submitting the measure
of YOUR resentment, or of OUR punishment to the judgment of any people,
or any individual." In the same manner, when the Thebans had offered
the most equitable terms to the Lacedaemonians, who still rose higher
in their demands, Aristides says, that the justice of the cause changed
sides and passed from the Lacedaemonians to the Thebans.
CHAPTER II.
THE GENERAL RIGHTS OF THINGS.
The general rights of things--Division of what is our own--The origin
and progress of property--Some things impossible to be made the
subject of property--The Sea of this nature, in its full extent, or
in its principal parts--Unoccupied lands may become the property
of individuals, unless they have been previously occupied by
the people at large--Wild beasts, fishes, birds, may become the
property of him who seizes them--In cases of necessity men have
a right of using that which has already become the property of
others--To sanction this indulgence, the necessity must be such
that it cannot otherwise be avoided--This indulgence not allowed
where the possessor is in an equal degree of necessity--The
party thus supplying his wants from another's property, bound
to make restitution whenever it is possible. The application
of this principle to the practice of war--The right to use the
property of another, provided that use be no way prejudicial to
the owner--Hence the right to the use of running water--The right
of passing through countries, and by rivers explained--An inquiry
into the right of imposing duties on merchandise--The right of
residing for a time in a foreign state--The right of exiles to
reside in the dominions of a foreign state, provided they submit
to its laws--In what manner the right of occupying waste places is
to be understood--The right to certain articles necessary to the
support of human society, and life--The general right of purchasing
those articles at a reasonable price--The right to sell, not of
equal force and extent--The right to those privileges which are
promiscuously granted to foreigners--Inquiry whether it be lawful
to contract with any people for the purchase of their productions
on condition of their not selling the same to others.
I. Among the causes assigned to justify war, we may reckon the
commission of injury, particularly such as affects any thing which
belongs to us. Now we establish this claim to any thing as our own
either by a right COMMON to us as men, or acquired by us in our
INDIVIDUAL capacity. But to begin with that which is the common right
of all mankind; we may observe that it comprises what is called by
legal authorities, Corporeal and Incorporeal rights.[17]
Things corporeal are either unappropriated, or made the subjects of
private property. Now the things unappropriated, are such that it
may be either possible or impossible for them to be reduced to a
state of private property.[18] In order therefore to understand this
more clearly, it will be necessary to take a survey of the origin of
property.
II. God gave to mankind in general, dominion over all the creatures
of the earth, from the first creation of the world; a grant which
was renewed upon the restoration of the world after the deluge. All
things, as Justin says, formed a common stock for all mankind, as the
inheritors of one general patrimony. From hence it happened, that
every man seized to his own use or consumption whatever he met with;
a general exercise of a right, which supplied the place of private
property. So that to deprive any one of what he had thus seized, became
an act of injustice. Which Cicero has explained in his third book, on
the bounds of good and evil, by comparing the world to a Theatre, in
which the seats are common property, yet every spectator claims that
which he occupies, for the time being, as his own. A state of affairs,
which could not subsist but in the greatest simplicity of manners, and
under the mutual forbearance and good-will of mankind. An example of
a community of goods, arising from extreme simplicity of manners, may
be seen in some nations of America, who for many ages have subsisted
in this manner without inconvenience. The Essenes of old, furnished an
example of men actuated by mutual affection and holding all things in
common, a practice adopted by the primitive Christians at Jerusalem,
and still prevailing among some of the religious orders. Man at his
first origin, requiring no clothing, afforded a proof of the simplicity
of manners in which he had been formed. Yet perhaps, as Justin says
of the Scythians, he might be considered as ignorant of vice rather
than acquainted with virtue; Tacitus says, that in the early ages of
the world, men lived free from the influence of evil passions, without
reproach, and wickedness; and consequently without the restraints of
punishment. In primitive times there appeared among mankind, according
to Macrobius, a simplicity, ignorant of evil, and inexperienced in
craft: a simplicity which in the book of Wisdom seems to be called
integrity, and by the Apostle Paul simplicity in opposition to
subtilty. Their sole employment was the worship of God, of which the
tree of life was the symbol, as it is explained by the ancient Hebrews,
whose opinion is confirmed by the Book of Revelation.
Men at that period subsisted upon the spontaneous productions of the
ground: a state of simplicity to which they did not long adhere, but
applied themselves to the invention of various arts, indicated by the
tree of knowledge of good and evil, that is the knowledge of those
things which may be either used properly, or abused; which Philo
calls a middle kind of wisdom. In this view, Solomon says, God hath
created men upright, that is, in simplicity, but they have sought out
many inventions, or, in the language of Philo, they have inclined to
subtilty. In the sixth oration of Dion Prusaeensis it is said, "the
descendants have degenerated from the innocence of primitive times,
contriving many subtile inventions no way conducive to the good of
life; and using their strength not to promote justice, but to gratify
their appetites." Agriculture and pasturage seem to have been the
most ancient pursuits, which characterized the first brothers. Some
distribution of things would necessarily follow these different states;
and we are informed by holy writ, that the rivalry thus created ended
in murder. At length men increasing in wickedness by their evil
communications with each other, the race of Giants, that is of strong
and violent men appeared, whom the Greeks denominate by a title,
signifying those who make their own hands and strength the measure of
justice.
The world in progress of time being cleared of this race by the deluge,
the savage was succeeded by a softer and more sensual way of life,
to which the use of wine proved subservient, being followed by all
the evil consequences of intoxication. But the greatest breach in
the harmony of men was made by ambition, which is considered in some
measure, as the offspring of a noble mind. Its first and most eminent
effects appeared in the attempt to raise the tower of Babel; the
failure of which caused the dispersion of mankind, who took possession
of different parts of the earth.
Still after this a community of lands for pasture, though not of
flocks, prevailed among men. For the great extent of land was
sufficient for the use of all occupants, as yet but few in number,
without their incommoding each other. In the words of the Poet, it was
deemed unlawful to fix a land mark on the plain, or to apportion it out
in stated limits. But as men increased in numbers and their flocks in
the same proportion, they could no longer with convenience enjoy the
use of lands in common, and it became necessary to divide them into
allotments for each family. Now in the hot countries of the East, wells
would be objects of great importance, for the refreshment of their
herds and flocks; so that in order to avoid strife and inconvenience,
all would be anxious to have them as possessions of their own. These
accounts we derive from sacred history, and they are found to agree
with the opinions maintained upon this subject by Philosophers and
Poets, who have described the community of goods, that prevailed in
the early state of the world, and the distribution of property which
afterwards took place. Hence a notion may be formed of the reason
why men departed from the primaeval state of holding all things in
common, attaching the ideas of property, first to moveable and next to
immoveable things.
When the inhabitants of the earth began to acquire a taste for more
delicate fare than the spontaneous productions of the ground, and to
look for more commodious habitations than caves, or the hollow of
trees, and to long for more elegant cloathing than the skins of wild
beasts, industry became necessary to supply those wants, and each
individual began to apply his attention to some particular art. The
distance of the places too, into which men were dispersed, prevented
them from carrying the fruits of the earth to a common stock, and in
the next place, the WANT of just principle and equitable kindness would
destroy that equality which ought to subsist both in the labour of
producing and consuming the necessaries of life.
At the same time, we learn how things passed from being held in common
to a state of property. It was not by the act of the mind alone that
this change took place. For men in that case could never know, what
others intended to appropriate to their own use, so as to exclude
the claim of every other pretender to the same; and many too might
desire to possess the same thing. Property therefore must have been
established either by express agreement, as by division, or by tacit
consent, as by occupancy. For as soon as it was found inconvenient
to hold things in common, before any division of lands had been
established, it is natural to suppose it must have been generally
agreed, that whatever any one had occupied should be accounted his own.
Cicero, in the third book of his Offices says, it is admitted as an
universal maxim, not repugnant to the principles of natural law, that
every one should rather wish himself to enjoy the necessaries of life,
than leave them for the acquisition of another. Which is supported by
Quintilian, who says, if the condition of life be such, that whatever
has fallen to the private use of any individual, becomes the property
of such holder, it is evidently unjust to take away any thing which
is possessed by such a right. And the ancients in styling Ceres a
law-giver, and giving the name of Thesmophoria to her sacred rights,
meant by this to signify that the division of lands had given birth to
a new kind of right.
III. Notwithstanding the statements above made, it must be admitted
that some things are impossible to be reduced to a state of property,
of which the Sea affords us an instance both in its general extent,
and in its principal branches. But as some are willing to make this
concession with regard to individuals, but not with regard to nations,
the position advanced in the beginning of this section may be proved
from the following moral argument, that as in this case the reason no
longer subsists why men should hold all things in common, the practice
ceases also. For the magnitude of the sea is such, as to be sufficient
for the use of all nations, to allow them without inconvenience and
prejudice to each other the right of fishing, sailing, or any other
advantage which that element affords. The same may be said of air as
common property, except that no one can use or enjoy it, without at
the same time using the ground over which it passes or rests. So that
the amusement of fowling cannot be followed, except by permission,
without trespassing upon the lands of some owner, over which the birds
fly.
The same appellation of COMMON may be given to the sand of the shore,
which being incapable of cultivation, is left free to yield its
inexhaustible supplies for the use of all.
There is a natural reason also, which renders the sea, considered in
the view already taken, incapable of being made property: because
occupancy can never subsist, but in things that can be confined to
certain permanent bounds. From whence Thucydides gives the name of
infinite space to unoccupied lands, and Isocrates speaking of that
occupied by the Athenians calls it that which has been measured by us
into alloted parts. But fluids, which cannot be limited or restrained,
except they be contained within some other substance, cannot be
occupied. Thus ponds, and lakes and rivers likewise, can only be made
property as far as they are confined within certain banks. But the
ocean as it is equal to, or larger than the earth, cannot be confined
within the land: so that the ancients said the earth was bounded in by
the sea like a girdle surrounding it. Nor can any imaginable division
of it have been originally framed. For as the greatest part of it was
unknown, it was impossible that nations far removed from each other
could agree upon the bounds to be assigned to different parts.
Whatever therefore was the common property of all, and after a general
division of all other things, retained its original state, could
not be appropriated by division, but by occupancy. And the marks of
distinction and separation by which its different parts were known,
followed such appropriation.
IV. The next matters to be noticed are those things, which though
not yet made property, may be reduced to that condition. Under this
description come waste lands, desert islands, wild beasts, fishes, and
birds. Now in these cases there are two things to be pointed out, which
are a double kind of occupancy that may take place; the one in the
name of the Sovereign, or of a whole people, the other by individuals,
converting into private estates the lands which they have so occupied.
The latter kind of individual property proceeds rather from assignment
than from free occupancy. Yet any places that have been taken
possession of in the name of a sovereign, or of a whole people, though
not portioned out amongst individuals, are not to be considered as
waste lands, but as the property of the first occupier, whether it be
the King, or a whole people. Of this description are rivers, lakes,
forests, and wild mountains.
V. As to wild beasts, fishes, and birds, it is to be observed that the
sovereign of the respective lands, or waters where they are found,
has a legal right to prohibit any one from taking them, and thereby
acquiring a property in them. A prohibition extending to foreigners,
as well as subjects. To foreigners; because by all the rules of moral
law they owe obedience to the sovereign, for the time during which they
reside in his territories. Nor is there any validity in the objection
founded on the Roman Law, the Law of nature, or the Law of nations,
which, it is said, declare such animals to be beasts of chace free to
every one's hunting. For this is only true, where there is no civil
law to interpose its prohibition; as the Roman law left many things in
their primitive state, which by other nations were placed upon a very
different footing. The deviations therefore from the state of nature,
which have been established by the civil law, are ordained by every
principle of natural justice to be obeyed by mankind. For although the
civil law can enjoin nothing which the law of nature prohibits, nor
prohibit any thing which it enjoins, yet it may circumscribe natural
liberty, restraining what was before allowed; although the restraint
should extend to the very acquisition of property, to which every man
AT FIRST had a right by the law of nature.
VI. The next thing to be considered is the right, which men have to
the common use of things, already appropriated; terms, in which at the
first sight there appears to be some inconsistency, as it appears that
the establishment of property has absorbed every right that sprung from
a state of things held in common. But this is by no means the case. For
the intention of those, who first introduce private property, must be
taken into the account. And it was but reasonable to suppose, that in
making this introduction of property, they would depart as little as
possible from the original principles of natural equity. For if written
laws are to be construed in a sense, approaching as nearly as possible
to the laws of nature, much more so are those customs which are not
fettered with the literal restrictions of written maxims. From hence it
follows that in cases of extreme necessity, the original right of using
things, as if they had remained in common, must be revived; because in
all human laws, and consequently in the laws relating to property, the
case of extreme necessity seems to form an exception.
Upon this principle is built the maxim that if in a voyage provisions
begin to fail, the stock of every individual ought to be produced for
common consumption; for the same reason a neighbouring house may be
pulled down to stop the progress of a fire: or the cables or nets,
in which a ship is entangled, may be cut, if it cannot otherwise be
disengaged. Maxims, none of which were introduced by the civil law, but
only explained by it according to the rules of natural equity.
Now among Theologians also it is a received opinion, that if in urgent
distress, any one shall take from another what is absolutely necessary
for the preservation of his own life, the act shall not be deemed a
theft. A rule not founded, as some allege, solely upon the law of
charity, which obliges every possessor to apply some part of his wealth
to relieve the needy; but upon the original division of lands among
private owners, which was made with a reservation in favour of the
primitive rights of nature. For if those who at first made the division
had been asked their opinion upon this point, they would have given the
same reason that has just been advanced. Necessity, says Seneca, the
great protectress of human infirmity breaks through all human laws,
and all those made in the spirit of human regulations. Cicero in his
eleventh Philippic, says, that Cassius went into Syria, which might be
considered as another's province, if men adhered to written laws, but
if these were abolished, it would be considered as his own by the law
of nature. In the sixth book and fourth chapter of Quintus Curtius,
we find an observation, that in a common calamity every man looks to
himself.
VII. Now this indulgence must be granted with precautions and
restrictions, to prevent it from degenerating into licentiousness. And
of these precautions, the first requires the distressed party to try
every mode of obtaining relief, by an appeal to a magistrate, or by
trying the effect of entreaty to prevail upon the owner to grant what
is necessary for his pressing occasions. Plato allows any one to seek
water from his neighbour's well, after having dug to a certain depth in
his own without effect. Solon limits the depth to forty cubits; upon
which Plutarch remarks, that he intended by this to relieve necessity
and difficulty, but not to encourage sloth. Xenophon in his answer to
the Sinopians, in the fifth book of the expedition of Cyrus, says,
"wherever we come, whether into a barbarous country or into any part of
Greece, and find the people unwilling to afford us supplies, we take
them, not through motives of wantonness, but from the compulsion of
necessity."
VIII. In the next place this plea of necessity cannot be admitted,
where the possessor is in an equal state of necessity himself. For
under equal circumstances the owner has a better right to the use of
his possessions. Though Lactantius maintains that it is no mark of
folly to forbear thrusting another from the same plank in a shipwreck
in order to save yourself. Because you have thereby avoided hurting
another: a sin which is certainly a proof of wisdom to abstain from.
Cicero, in the third book of his offices, asks this question, if a wise
man, in danger of perishing with hunger, has not a right to take the
provisions of another, who is good for nothing? To which he replies; By
no means. For no one's life can be of such importance as to authorize
the violation of that general rule of forbearance, by which the peace
and safety of every individual are secured.
IX. In the third place, the party thus supplying his wants from
the property of another, is bound to make restitution, or give an
equivalent to the owner, whenever that is possible. There are some
indeed, who deny this, upon the ground that no one is bound to give an
indemnity for having exercised his own right. But strictly speaking,
it was not a full and perfect right, which he exercised; but a kind of
permission, arising out of a case of necessity, and existing no longer
than while the necessity continued. For such a permissive right is only
granted in order to preserve natural equity in opposition to the strict
and churlish rigour of exclusive ownership.
X. Hence it may be inferred, that, in the prosecution of a just war,
any power has a right to take possession of a neutral soil; if there be
real grounds, and not imaginary fears for supposing the enemy intends
to make himself master of the same, especially if the enemy's occupying
it would be attended with imminent and irreparable mischief to that
same power. But in this case the restriction is applied that nothing be
taken but what is actually necessary to such precaution and security.
Barely occupying the place is all that can be justified: leaving to
the real owner the full enjoyment of all his rights, immunities, and
jurisdiction, and all the productions of his soil. And this must be
done too with the full intention of restoring the place to its lawful
Sovereign, whenever the necessity, for which it was occupied, may
cease. The retaining of Enna, Livy says, was either an act of violence,
or a necessary measure; by violence meaning the least departure from
necessity. The Greeks, who were with Xenophon being in great want of
ships, by Xenophon's own advice, seized upon those that were passing,
still preserving the property untouched for the owners, supplying the
sailors with provisions, and paying them wages. The principal right
therefore, founded upon the original community of goods, remaining
since the introduction of property, is that of necessity, which has
just been discussed.
XI. There is another right, which is that of making use of the property
of another, where such use is attended with no prejudice to the owner.
For why, says Cicero, should not any one, when he can do it without
injury to himself, allow another to share with him those advantages,
which are useful to the receiver, and no way detrimental to the giver?
Seneca therefore observes, that it is no favour to allow another to
light his fire from your flame. And in the 7th book of Plutarch's
Symposiacs, we find an observation, that when we have provisions more
than sufficient for our own consumption it is wicked to destroy the
remainder; or after supplying our own wants, to obstruct or destroy the
springs of water; or after having finished our voyage, not to leave
for other passengers the sea-marks, that have enabled us to steer our
course.
XII. Upon the principles already established, a river, as such, is the
property of that people, or of the sovereign of that people, through
whose territories it flows. He may form quays, and buttresses upon that
river, and to him all the produce of it belongs. But the same river,
as a running water, still remains common to all to draw or drink it.
Ovid introduces Latona thus addressing the Lydians, "Why do you refuse
water, the use of which is common?" where he calls water a public gift
that is common to men, taking the word public in a more general sense
than as applied to any PEOPLE, a meaning in which some things are said
to be public by the law of nations. And in the same sense Virgil has
asserted water to be free and open to all men.
XIII. It is upon the same foundation of common right, that a free
passage through countries, rivers, or over any part of the sea, which
belongs to some particular people, ought to be allowed to those, who
require it for the necessary occasions of life; whether those occasions
be in quest of settlements, after being driven from their own country,
or to trade with a remote nation, or to recover by just war their lost
possessions. The same reason prevails here as in the cases above named.
Because property was originally introduced with a reservation of that
use, which might be of general benefit, and not prejudicial to the
interest of the owner: an intention evidently entertained by those,
who first devised the separation of the bounteous gifts of the creator
into private possessions. There is a remarkable instance of this in the
Mosaic history, when the leader of the children of Israel required a
free passage for that people, promising to the King of Edom, and to the
King of the Amorites, that he would go by the highway, without setting
a foot upon the soil of private possessions, and that the people should
pay the price of everything, which they might have occasion to use.
Upon these equitable terms being rejected, Moses was justified in
making war upon the Amorites. Because, says Augustin, an inoffensive
passage, a right interwoven with the very frame of human society, was
refused. The Greeks under the command of Clearchus, said, "we are upon
the way to our home, if no one interrupt us; but every attempt to
molest us, we are, with the assistance of heaven, determined to avenge."
Not unlike this answer of the soldiers under Clearchus is the question
put to the different nations of Thrace by Agesilaus, who desired to
know whether they wished him to pass through their country as a friend,
or as an enemy. When the Boeotians hesitated upon some propositions
made to them by Lysander, he asked them whether they intended that he
should pass with erected or inclined spears, meaning by the expression
in a hostile or a quiet manner. We are informed by Tacitus, that the
Batavians, as soon as they came near the camp at Bonn, sent a message
to Herennius Gallus, importing that "they had no hostile design; that
if not obstructed, they would march in a peaceable manner; but if they
met with opposition they would cut their way sword in hand." When
Cimon in carrying supplies to the Lacedaemonians, had marched with his
troops through some part of the Corinthian district, the Corinthians
expostulated upon his conduct as a violation of their territory,
because he had done it without asking their leave, at the same time
observing, that no one knocks at another man's door, or presumes to
enter the house without obtaining the master's leave. To whom he
replied, you never knocked at the gates of Cleone and Megara, but broke
them down, believing, I suppose, that no right ought to withstand the
force of the mighty.
Now between these two extremes there is a middle course, requiring a
free passage to be first asked; the refusal of which will justify the
application of force. Thus Agesilaus in his return from Asia when he
had asked a passage of the King of the Macedonians, who answered that
he would consider of it, said, you may consider, if you please, but we
shall pass in the mean time.
The fears, which any power entertains from a multitude in arms passing
through its territories, do not form such an exception as can do away
the rule already laid down. For it is not proper or reasonable that the
fears of one party should destroy the rights of another. Especially,
as necessary precautions and securities may be used, such as those,
for instance, of requiring that the troops shall pass without arms, or
in small bodies; a promise which the Agrippinians made to the Germans.
And, as we are informed by Strabo, the practice still prevails in the
country of the Eleans. Another security may be found in providing
garrisons at the expense of the party, to whom the passage is granted;
or in giving hostages; the condition, which Seleucus demanded of
Demetrius, for permitting him to remain within his territories. Nor
is the fear of offending that power, which is the object of attack, a
sufficient pretext for refusing the passage of the troops to the state
that is engaged in a just war. Nor is it a proper reason to assign for
a refusal, to say that another passage may be found; as every other
power might allege the same, and by this means the right of passage
would be entirely defeated. The request of a passage therefore, by the
nearest and most commodious way, without doing injury and mischief, is
a sufficient ground upon which it should be granted. It alters the case
entirely, if the party making the request is engaged in unjust war,
and is marching with the troops of a power hostile to the sovereign of
that territory; for in this instance, a passage may be refused. For the
sovereign has a right to attack that power in his own territory, and to
oppose its march.
Now a free passage ought to be allowed not only to persons, but to
merchandise. For no power has a right to prevent one nation from
trading with another at a remote distance; a permission which for the
interest of society should be maintained. Nor can it be said that any
one is injured by it. For though he may be thereby deprived of an
exclusive gain, yet the loss of what is not his due, as a MATTER OF
RIGHT, can never be considered as a damage or the violation of a claim.
XIV. But it will form a subject of inquiry, whether the sovereign of
the country has a right to impose duties on goods carried by land, or
upon a river or upon any part of the sea, which may form an accession
to his dominions. It would undoubtedly be unjust for any burdens
foreign to the nature of trade to be imposed upon such goods. Thus
strangers merely passing through a country would have no right to pay
a poll-tax, imposed to support the exigencies of the state. But if the
sovereign incurs expence by providing security and protection to trade,
he has a right to reimburse himself by the imposition of moderate and
reasonable duties. It is the REASONABLENESS of them, which constitutes
the justice of customs and taxes. Thus Solomon received tolls for
horses and linen that passed over the Isthmus of Syria. Pliny,
speaking of frankincense, observes that as it could not be transported
but by the Gebanites, a duty upon it was paid to their king. In the
same manner, as Strabo informs us in his fourth book, the people of
Marseilles derived great wealth from the canal which Marius had made
from the Rhone to the sea, by exacting tribute of all that sailed upon
it to and fro with vessels. In the eighth book of the same writer, we
are told that the Corinthians imposed a duty upon all goods, which, to
avoid the dangerous passage of Cape Malea, were transported by land
from sea to sea. The Romans too made the passage of the Rhine a source
of tribute, and Seneca relates that a toll was paid for going over
bridges. The works of legal writers abound in instances of this kind.
But it frequently happens that extortion is practised in these matters,
which Strabo forms into a subject of complaint against chiefs of the
Arabian tribes, concluding that it would be unlikely for men of that
lawless kind to impose upon the goods of merchants any duties that were
not oppressive.
XV. Those going with merchandise or only passing through a country,
ought to be allowed to reside there for a time, if the recovery of
health, or any other just cause should render such residence necessary.
For these may be reckoned among the innocent uses of our right.
Thus Ilioneus in Virgil calls heaven to witness the injustice of
the Africans in driving him and his shipwrecked companions from the
hospitable use of the shore, and we are informed by Plutarch in his
life of Pericles that all the Grecians approved of the complaint, which
the Megarensians made against the Athenians, who had prohibited them
from setting foot upon the soil of their territories, or carrying a
vessel into their harbours. So the Lacedaemonians regarded this as the
most sufficient grounds to justify the war.
From hence results the right of erecting a temporary hut, upon the
shore, although, for instance, the same shore is allowed to be the
property of the people of that place. For what Pomponius says of its
being necessary to obtain the Praetor's leave, before a building can
be raised upon the public shore, relates to structures of a permanent
kind, when the massy piles of stone, as the Poet says, encroach upon
the sea, and the affrighted fish feel their waves contracted.
XVI. Nor ought a permanent residence to be refused to foreigners, who,
driven from their own country, seek a place or refuge. But then it is
only upon condition that they submit to the established laws of the
place, and avoid every occasion of exciting tumult and sedition. A
reasonable rule, which the divine poet has observed, when he introduces
Aeneas making an offer that Latinus, who had become his father-in-law,
should retain all military and civil power. And in Dionysius of
Halicarnassus, Latinus admits the proposal of Aeneas to be just; as
he came through necessity in quest of a settlement. To drive away
refugees, says Strabo, from Eratosthenes, is acting like barbarians;
and a conduct like this in the Spartans was also condemned. St.
Ambrose passes the same sentence of condemnation upon those powers, who
refuse all admission to strangers. Yet settlers of this description
have no right to demand a share in the government. A proposal of this
kind made by the Minyae to the Lacedaemonians, who had received them,
is very properly considered by Herodotus as insolent, and unreasonable.
XVII. It is indeed but an act of common humanity in a sovereign to
allow strangers, at their request, liberty to fix their residence upon
any waste or barren lands within his dominions, still reserving to
himself all the rights of sovereignty. Seven hundred acres of barren
and uncultivated land, as Servius observes, were given by the native
Latins to the Trojans. Dion Prusaeensis, in his seventh oration, says,
that they commit no crime of trespass, who take upon them to cultivate
waste lands. The refusal of this privilege made the Ansibarians
exclaim, "the firmament over our heads is the mansion of the deity: the
earth was given to man; and what remains unoccupied, lies in common
to all." Yet that complaint did not apply exactly to their case. For
those lands could not be called unoccupied, as they served to supply
the Roman army with forage for their cattle, which certainly furnished
the Romans with a just pretext for refusing to grant their request. And
with no less propriety the Romans asked the Galli Senones if it were
right to demand lands already possessed, and to threaten to take them
by force.
XVIII. Since the COMMON RIGHT TO THINGS has been established, the
COMMON RIGHT TO ACTIONS follows next in order, and this right is either
absolute, or established by the supposition of a general agreement
amongst mankind. Now all men have absolutely a right to do such or
such acts as are necessary to provide whatever is essential to the
existence or convenience of life. CONVENIENCE is included in this
right; for there is no occasion here to imagine an existence of the
same necessity as was requisite to authorize the seizing of another's
property. Because the point of discussion here is not whether any act
is done AGAINST THE WILL of an owner, but whether we acquire what is
necessary for our wants ACCORDING TO THE TERMS to which the owner has
agreed.[19] Supposing there is nothing illegal in the contract, nor
any wilful intention on his part to make it null and void. For any
impediment created by the owner in such transactions, is repugnant
to the very principles of natural justice, which suppose an equality
of upright dealing to subsist in both the parties concerned. St.
Ambrose calls a fraudulent conduct of that kind, an attempt to deprive
men of their share in the goods of a common parent, to withhold the
productions of nature which are the birthright of all, and to destroy
that commerce which is the very support of life. For we are not
treating of superfluities and luxuries, but of those things, which are
essential to life, as physic, food and cloathing.
XIX. From what has already been proved, it follows that all men have a
right to purchase the necessaries of life at a reasonable price, except
the owners want them for their own use. Thus in a great scarcity of
corn, there would be no injustice in their refusing to sell. And yet
in such a time of necessity foreigners, who have been once admitted,
cannot be driven away; but as St. Ambrose shews in the passage already
quoted, a common evil must be borne by all alike.
XX. Now owners have not the same right in the sale of their goods: for
others are at full liberty to determine whether they will purchase
certain articles or not. The ancient Belgians, for instance, allowed
not wines and other foreign merchandise to be imported among them. The
same rule, we are informed by Strabo, was practised by the Nabathaean
Arabians.
XXI. It is supposed to be generally agreed among mankind, that the
privileges, which any nation grants promiscuously to the subjects
of foreign powers or countries, are the common right of all.[20]
Consequently the exclusion of any one people from these rights would
be considered as an injury to that people. Thus, wherever foreigners
in general are allowed to hunt, to fish, to shoot, to gather pearls,
to succeed to property by testament, to sell commodities, or to form
intermarriages, the same privileges cannot be refused to any particular
people, unless they have by misconduct forfeited their right. On which
account the tribe of Benjamin was debarred from intermarrying with
other tribes.
XXII. It has sometimes been a subject of inquiry whether one nation
may lawfully agree with another to exclude all nations but herself
from purchasing certain productions, which are the peculiar growth of
her soil. An agreement which, it is evident, may be lawfully made; if
the purchaser intends to supply other nations with those articles at a
reasonable price. For it is a matter of indifference to other nations
OF WHOM they purchase, provided they can have a reasonable supply for
their wants. Nor is there any thing unlawful in allowing one people
an advantage over another in this respect, particularly for a nation
who has taken another under her protection and incurred expence on
that account. Now such a monopoly, under the circumstances already
mentioned, is no way repugnant to the law of nature,[21] though it
may be sometimes for the interest of the community to prohibit it by
express laws.
CHAPTER III.
ON THE ORIGINAL ACQUISITION OF THINGS, AND THE RIGHT OF PROPERTY IN
SEAS AND RIVERS.
Specification of moveable property--The difference between
sovereignty and property--The right to moveables by occupancy may
be superseded by law--Rivers may be occupied--Right to seas--On the
treaties binding a people not to navigate the seas beyond certain
bounds--Inquiry into the nature of the change which a river,
changing its course, makes in the adjoining territories--What
determination is to be made, where the river has entirely
changed its channel--Sometimes a whole river may accrue to a
territory--Things deserted belong to the first occupier.
I. Among the means of acquiring property, Paulus the Lawyer reckons
one, which seems most natural, and that is, if by the ingenuity of
art, or the exertions of labour we have given to any production its
existence among the works of man. Now as nothing can naturally be
produced, except from some materials before in existence, it follows
that, if those materials were our own, the possession of them under any
new shape, or commodity is only a CONTINUATION of our former property;
if they belonged to no one, our possession comes under the class of
title by occupancy: but if they were another's, no improvement of ours
can by the law of nature give us a right of property therein.
II. Among those things, which belong to no one, there are two that
may become the subjects of occupancy; and those are jurisdiction, or
sovereignty and property. For jurisdiction and property are distinct
from each other in their effects. The objects over which sovereignty
may be exercised are of a twofold description, embracing both persons
and things. But this is not the case with property, the right of which
can extend only to the irrational and inanimate part of the creation.
Though it might originally, for the most part, be the same act by which
sovereignty and property were acquired, yet they are in their nature
distinct. SOVEREIGNTY, says Seneca, belongs to PRINCES and PROPERTY
to INDIVIDUALS. The sovereignty therefore, not only over subjects at
home, but over those in the prince's foreign dominions passes with the
hereditary descent of the crown.
III. In places, where sovereignty is already established, the right to
moveables by occupancy, and indeed every original right must give way
to the superior sanction of law. And what any man before held by any
such right, he would afterwards be considered as holding by the laws of
the country. For those original rights were PERMISSIONS of the law of
nature, and not commands that were to be PERPETUALLY enforced. For the
continued establishment of such a right as that by prior occupancy, so
far from promoting the welfare, would operate to the very destruction
of human society. Although it may be said by way of objection, that
the law of nations seems to admit of such a right, yet we may answer
that if such a rule either is or has been commonly received in any part
of the world, it has not the force of a general compact binding upon
different independent nations; but may be considered as one branch of
the civil law of many nations, which any state has a right to continue,
or repeal according to its own pleasure or discretion. There are many
other things indeed which legal writers, in treating of the division
and acquisition of property, consider as forming a part of the law of
nations.
IV. Rivers may be occupied by a country, not including the stream
above, nor that below its own territories. But the waters which wash
its lands form an inseparable part of the current, making its way
to the main sea. For to constitute the right to a property in its
channel, it is sufficient that its sides, inclosed by the banks of that
territory form its greatest part, and that the river itself compared
with the land, makes but a small portion.
V. In the same manner, the sea appears capable of being made a property
by the power possessed of the shore on both sides of it; although
beyond those limits it may spread to a wide extent, which is the case
with a bay, and with a straight beyond each of its outlets into main
sea or ocean. But this right of property can never take place where
the sea is of such a magnitude, as to surpass all comparison with that
portion of the land which it washes. And the right, which one people or
prince possesses, may also be shared by a great number of states, among
whose respective territories the sea flows. Thus rivers separating
two powers may be occupied by both, to each of whom their use and
advantages may be equal.
VI. Instances may be found of treaties by which one nation binds itself
to another, not to navigate particular seas beyond certain bounds.
Thus between the Egyptians and the Princes inhabiting the borders of
the Red Sea, it was agreed, in ancient times, that the former should
not enter that sea with any ship of war, nor with more than one
merchant ship. In the same manner, in the time of Cimon, the Persians
were bound by a treaty, made with the Athenians, not to sail with any
ship of war between the Cyanean rocks and the Chelidonian islands; a
prohibition, which, after the battle of Salamis, restricted any Persian
armed vessel from sailing between Phaselis and the above named rocks.
In the one year's truce of the Peloponnesian war, the Lacedaemonians
were prohibited from sailing with any ships of war whatever, or indeed
with any other ships of more than twenty tons burden. And in the first
treaty, which the Romans, immediately after the expulsion of their
kings, made with the Carthaginians, it was stipulated that neither the
Romans, nor their allies should sail beyond the promontory of Pulchrum,
except they were driven thither by stress of weather, or to avoid being
captured by an enemy. But in either case they were to take nothing more
than necessaries, and to depart before the expiration of five days. And
in the second treaty, the Romans were prohibited from committing any
acts of piracy, or even from trading beyond the promontory of Pulchrum,
Massia and Tarseius.
In a treaty of peace between the Illyrians and Romans, the latter
required that they should not pass beyond the Lissus with more than two
frigates, and those unarmed. In the peace with Antiochus, he was bound
not to sail within the capes of Calycadnius and Sarpedon, except with
ships carrying tribute, ambassadors, or hostages. Now the instances
alluded to do not prove the actual occupancy of the sea, or the right
of navigation. For it may happen that both individuals and nations
may grant as a matter of favour or compact, not only what they have
a competent right to dispose of, but that which is the common right
of all men as well as of themselves. When this happens, we may say
as Ulpian did on a like occasion, where an estate had been sold with
a reservation, that the purchaser should not fish for Tunny to the
prejudice of the seller. He observed that the sea could not be rendered
subject to a service, but still the purchaser and those who succeeded
to his possession, were bound in honour to observe that part of the
contract.
VII. Whenever a river has changed its course, disputes have arisen
between neighboring states to decide whether such an alteration creates
any change in the adjoining territories, and to whom any addition of
land occasioned by that change accrues. Disputes which must be settled
according to the nature and manner of such acquisition. Writers,
who have treated of the division of land, have described it as of
a threefold nature: one kind they name DIVIDED and ASSIGNED land,
which Frontinus the Lawyer calls LIMITED, because it is marked out
by artificial boundaries. By land ASSIGNED, is meant that which has
been appropriated to a whole community, comprehending a certain number
of families; a hundred for instance: from whence it has derived that
name. And those portions are called hundreds. There is another division
called ARCIFINIUM, which is applied when the land is defended against
an enemy by the natural boundaries of rivers or mountains. These lands
Aggenus Urbicus calls OCCUPATORY, being such as have been occupied
either by reason of their being vacant, or by the power of conquest. In
the two first kinds of lands, because their extent and bounds are fixed
and determined, though a river should change its course, it occasions
no change of territory, and what is added by alluvion will belong to
the former occupant.
In arcifinious lands, where the bounds are formed by nature, any
gradual change in the course of the river makes a change also in the
boundaries of territory, and whatever accession is given by the river
to one side, it will belong to the possessor of the land on that side.
Because the respective nations are supposed originally to have taken
possession of those lands, with an intention of making the MIDDLE of
that river, as a natural boundary, the line of separation between
them. Thus Tacitus in speaking of the Usipians and Tencterians, who
border on the Cattians, says, "their territory lies on the banks of the
Rhine, where that river, still flowing in one regular channel, forms a
sufficient boundary."
VIII. Decisions like those above can only take place in instances,
where the river has not altered its channel. For a river, dividing
territories, is not to be considered barely as so much water, but as
water flowing in a PARTICULAR CHANNEL, and inclosed WITHIN CERTAIN
BANKS. For which reason an addition, a decrease, or such a change of
small portions, as leaves the ancient appearance, upon the whole,
nearly the same, allows us to consider the river as still the same. But
if the whole face of the river is changed, the case will be entirely
altered. For as a river may be entirely destroyed by the erection of
dams upon the higher parts of its stream, or by digging canals, which
carry off its waters in another direction: so by the desertion of its
old channel, and breaking out for itself another course, it will not
continue to be same river it was before, but will be completely a new
one. In the same manner if a river has been dried up, the middle of its
channel will remain as the boundary between neighbouring states, who
in taking possession of the neighbouring territory originally intended
the middle of such a river to be the line of separation, and under all
changes to preserve the same as a permanent limit. But in doubtful
cases, the territories bordering upon a river ought to be considered
as arcifinious, because nothing can be a more apt mark of distinction
than those impassable bounds assigned by nature. It very seldom indeed
happens, that the artificial or civil admeasurements of territory can
be regulated by such natural bounds, as they are, in general, the
effect of original acquisition, or have been ceded by treaty.
IX. Although in doubtful cases, it has been said that the territories
on each side of a river are determined by the middle of the channel;
yet it may happen, and has happened, that the sole right to a river
may belong to the territories on one side of it. Because that on the
opposite side was of later occupancy, and subsequent to the possession
of that river by the other power: or because this sole right may have
been so settled by treaty.
X. It is not unworthy of observation that things which have had an
owner, but have ceased to have one, become subject to the right by
original acquisition. They are supposed to have been abandoned from the
want of an owner, and therefore have returned to the original state
of common stock. But at the same time it is proper to observe, that
some times the original acquisition may have been made by a people or
their sovereign, in such a manner as to give them or him not only those
pre-eminent rights which constitute prerogative, but also the full
title of property.
And this property again may be divided into smaller grants, and those
again subdivided into other portions, to be held as dependent upon the
original grantor, the Sovereign, or the Lord. Though the land may not
be held by base service, or vassalage, yet it is possessed by some
conditional tenure. For things are occupied by many kinds of right;
among which may be reckoned the right of a person who expects property
to be left to him under the condition of a trust. Seneca says, that an
owner's being debarred from selling his lands, committing waste upon
them, or even making improvements, is not to be taken as a proof that
the property is not his. For that is a man's own, which he holds under
any certain conditions. Since then property distributed in the manner
above named is held of the sovereign, or of some intermediate Lord, who
himself is tenant of the sovereign, it follows that any thing which
wants an owner does not become the property of him, who can first seize
it, but reverts to the state or to the sovereign.
[Illustration: _WAR_
_By Gari Melchers--From a panel painting in Library of Congress._]
CHAPTER IV.
TITLE TO DESERT LAND BY OCCUPANCY, POSSESSION, AND PRESCRIPTION.
Why Usucaption or Prescription cannot subsist between independent
States, and Sovereigns--Long possession alleged as a ground
of right--Inquiry into the intentions of men, which are not
to be judged of by words alone--Intention to be judged of by
acts--Intentions also to be judged of by omissions--How far length
of time, silence, and non-possession, may confirm the conjecture of
an abandoned right--Time immemorial generally thought to bar any
claim--What constitutes time immemorial--Objections to a presumed
desertion of property, considered without any conjecture, time
immemorial appears to transfer and constitute a property--Inquiry
whether persons yet unborn may thus be deprived of their
right--Rules of civil law respecting Usucaption and Prescription as
applied to the case of Sovereign Princes, explained.
I. A great difficulty arises here respecting the right to property
by uninterrupted possession for any certain time. For though time is
the great agent, by whose motion all legal concerns and rights may
be measured and determined, yet it has no effectual power of itself
to create an express title to any property. Now those rights were
introduced by the civil law; and it is not their long continuance,
but the express provisions of the municipal law, which gives them
their validity. They are of no force therefore, in the opinion of
Vasquez, between two independent nations or sovereigns, or between a
free nation and a sovereign: between a sovereign and an individual who
is not his subject, or between two subjects belonging to different
kings or nations. Which indeed seems true; and is actually the case;
for such points relating to persons and things, are not left to
the law of nature, but are settled by the respective laws of each
country. As the unqualified admission of this principle would lead to
great inconvenience, and prevent the disputes of kings and nations
respecting the bounds of territory from ever being adjusted; in order
to eradicate the seeds of perpetual warfare and confusion, so repugnant
to the interests and feelings of every people; the settlement of such
boundaries is not left to the claims of prescriptive right; but the
territories of each contending party are, in general, expressly defined
by certain treaties.
II. To disturb any one in the actual and long possession of territory,
has in all ages been considered as repugnant to the general interests
and feelings of mankind. For we find in holy writ, that when the
King of the Ammonites demanded the lands situated between the rivers
Arnon and Jabok, and those extending from the deserts of Arabia
to the Jordan, Jepthah opposed his pretentious by proving his own
possession of the same for three hundred years, and asked why he and
his ancestors had for so long a period neglected to make their claim.
And the Lacedaemonians, we are informed by Isocrates, laid it down for
a certain rule admitted among all nations, that the right to public
territory as well as to private property was so firmly established by
length of time, that it could not be disturbed; and upon this ground
they rejected the claim of those who demanded the restoration of
Messena.
Resting upon a right like this, Philip the Second was induced to
declare to Titus Quintius, "that he would restore the dominions which
he had subdued himself, but would upon no consideration give up the
possessions which he had derived from his ancestors by a just and
hereditary title. Sulpitius, speaking against Antiochus, proved how
unjust it was in him to pretend, that because the Greek Nations in
Asia had once been under the subjection of his forefathers, he had a
right to revive those claims, and to reduce them again to a state of
servitude. And upon this subject two historians, Tacitus and Diodorus
may be referred to; the former of whom calls such obsolete pretensions,
empty talking, and the latter treats them as idle tales and fables.
With these opinions Cicero, in his 2nd book of Offices, agrees, asking
"what justice there can be in depriving an owner of the land, which he
has for many ages quietly possessed?"
III. Can it be said, in order to justify the disturbance of long
enjoyed possessions, that the rightful owner INTENDED to assert his
claim, when he never manifested such intention by any outward visible
act? The effect of right which depends upon a man's intentions can
never follow from a bare conjecture of his will, unless he has declared
and proved it by some express and visible act. For actions being the
only evidence of intentions, intentions can never of themselves
alone without such acts be the object of human laws. No conjectures
indeed respecting the acts of the mind can be reduced to mathematical
certainty, but only to the evidence of probability at the utmost. For
men by their words may express intentions different from their real
ones, and by their acts counterfeit intentions which they have not. The
nature of human society, however, requires that all acts of the mind,
when sufficiently indicated, should be followed by their due effects.
Therefore the intention, which has been sufficiently indicated, is
taken for granted against him who gave such indication.
IV. But to proceed to proofs derived from actions. A thing is
understood to be abandoned, when it is cast away; except it be under
particular circumstances, as throwing goods overboard in a storm to
lighten a ship, where the owner is not supposed to have abandoned all
intention of recovery, should it ever be in his power. Again, by giving
up or cancelling a promissory note, a debt is deemed to be discharged.
Paulus the Lawyer, says, a right to property may be renounced not only
by words, but also by actions, or any other indication of the will.
Thus, if an owner knowingly make a contract with any one who is in
possession, treating him as if he were the rightful proprietor, he
is naturally supposed to have relinquished his own pretensions. Nor
is there any reason, why the same rule may not take place between
sovereign princes, and independent states, as between individuals. In
the same manner, a Lord by granting certain privileges to his Vassal,
which he could not legally enjoy without a release from his former
obligations, was supposed by such act to have given him his freedom. A
power derived not from the civil law only, but from the law of nature,
which allows every man to relinquish what is his own, and from a
natural presumption that a person designed to do the act which he has
given manifest proofs of his intention to do. In this sense, Ulpian may
be rightly understood, where he says, that ACCEPTILATION or the verbal
discharge of a debt is founded upon the law of nations.
V. Even omissions, taking all proper circumstances into consideration,
come under the cognizance of the law. Thus the person, who knowing
of an act, and being present at the commission of it, passes it over
in silence, seems to give his consent to it; this was admitted by
the Mosaic Law. Unless indeed it can be shewn that the same person
was hindered from speaking either by fear or some other pressing
circumstance. Thus a thing is accounted as lost when all hope of
recovering it is given up; as for instance, if a tame animal, which was
in our possession, be seized and carried off by a wild beast. Goods too
lost by shipwreck, Ulpian says, cease to be considered as our own, not
immediately, but when they are lost beyond all possibility of being
reclaimed, and when no proofs of the owner's intention to reclaim them
can be discovered.
Now the case is altered, if persons were sent to inquire after the
lost goods, or property, and a reward was promised to the finder. But
if a person knows his property to be in the possession of another, and
allows it to remain so for a length of time, without asserting his
claim, unless there appear sufficient reasons for his silence, he is
construed to have entirely abandoned all pretensions to the same. And
to the same purpose he has said elsewhere, that a house is looked upon
to be abandoned on account of the long silence of the proprietor.
The Emperor Antoninus Pius, in one of his rescripts, said there was but
little justice in claiming interest upon money after a long period; for
the length of time elapsed was an indication that the debtor had been
excused from payment, from some motive of kindness.
There appears something similar to this in the nature of custom.
For apart from the authority of civil laws, which regulate the time
and manner of custom, and its introduction, it may arise from the
indulgence of a sovereign to a conquered people. But the length of time
from which custom derives the force of right, is not defined, but left
to the arbitrary decision of what is sufficient to indicate general
consent. But for silence to be taken as a valid presumption that
property is deserted, two things are requisite: it must be a silence
with a knowledge of the fact, and with a perfect freedom of will in
the person concerned. For a silence founded in ignorance can have no
weight; and where any other reason appears, the presumption of free
consent must fail.
VI. Although the two requisites already named may be produced, yet
other reasons have their weight; among which length of time is not the
least important. For in the first place, it can scarcely happen, that
for a great length of time a thing belonging to any one should not
some way or other come to his knowledge, as time might supply many
opportunities. Even if the civil law did not interpose to bar remote
pretensions, the very nature of things would shew the reasonableness of
a shorter period of limitation being allowed to present than to absent
claimants. If impressions of fear were pleaded by any one in excuse,
yet their influence would not be of perpetual duration, and length
of time would unfold various means of security against such fears,
either from resources within himself, or from the assistance of others.
Escaping beyond the reach of him he dreaded, he might protest against
his oppression, by appealing to proper judges and arbitrators.
VII. Now as time immemorial, considered in a moral light, seems to
have no bounds, silence for such a length of time appears sufficient
to establish the presumption that all claim to a thing is abandoned,
unless the strongest proofs to the contrary can be produced. The most
able Lawyers have properly observed, that time according to the memory
of man is not an hundred years, though probably it may not fall far
short of that space. For a hundred years are the term beyond which
human existence seldom reaches; a space, which in general completes
three ages or generations of men. The Romans made this objection to
Antiochus, that he claimed cities, which neither he himself, his
father, nor his grandfather had ever possessed.
VIII. From the natural affection which all men have for themselves,
and their property, an objection may be taken against the presumption
of any one's abandoning a thing which belongs to him, and consequently
negative acts, even though confirmed by a long period of time, are not
sufficient to establish the above named conjecture.
Now considering the great importance deservedly attached to the
settlement of CROWNS, all conjectures favourable to the possessors
ought to be allowed. For if Aratus of Sicyon thought it a hard case,
that PRIVATE possessions of fifty years' standing should be disturbed,
how much weightier is that maxim of Augustus, that it is the character
of a good man and a good subject to wish for no change in the present
government, and, IN THE WORDS, WHICH THUCYDIDES HAS ASSIGNED TO
ALCIBIADES, to support the constitution, under which he has been born?
But if no such rules in favour of possession could be adduced, yet a
more weighty objection might be found against the presumption, drawn
from the inclination of every one to preserve his own right, which is
the improbability of one man's allowing another to usurp his property
for any length of time, without declaring and asserting his own right.
IX. Perhaps it may reasonably be said, that this matter does not
rest upon presumption only, but that it is a rule, introduced by the
voluntary law of Nations, that uninterrupted possession, against which
no claim has been asserted, will entirely transfer such property to the
actual possessor. For it is most likely that all nations by consent
gave their sanction to such a practice, as conducive to their common
peace. The term uninterrupted possession therefore has been very
properly used to signify, as Sulpitius says in Livy, "that which has
been held by one uniform tenour of right, without intermission." Or as
the same author, in another place, calls it, "perpetual possession,
that has never been called in question." For a transitory possession
creates no title. And it was this exception which the Numidians had
urged against the Carthaginians, alleging that as opportunity offered,
sometimes the Kings of the Numidians had appropriated to themselves the
disputed possessions, which had always remained in the hands of the
stronger party.
X. But here another question, and that of considerable difficulty,
arises, which is, to decide, whether, by this desertion, persons yet
unborn may be deprived of their rights. If we maintain that they
MAY NOT, the rule already established would be of no avail towards
settling the tranquillity of kingdoms, and security of property. For
in most things some thing is due to the interests of posterity. But if
we affirm that they MAY, it then seems wonderful that silence should
prejudice the rights of those, who were unable to speak, before they
had any existence, and that the act of OTHERS should operate to their
injury. To clear up this point, we must observe that no rights can
belong to a person before he has any existence, as, in the language of
the schools, there can be no accident without a substance. Wherefore
if a Prince, from urgent motives of policy, and for the advantage of
his own native dominions, and subjects, should decline to accept an
additional sovereignty, or for the same reasons, should relinquish
that, which he had already accepted, he would not be charged with
injuring his heirs and successors, then unborn, who could have no
rights before they had a natural existence.
Now as a sovereign may EXPRESSLY declare a change of his will
respecting such dominions, so that change may, in certain cases, be
implied without such declaration.
In consequence of such a change either expressed or implied, before the
rights of heirs and successors can be supposed to have any existence,
the possession may be considered as entirely abandoned. The case here
has been considered according to the LAW OF NATURE: for the civil
law, among other fictions, introduced that of the law's personating
those, who are not yet in being, and so preventing any occupancy from
taking place to their prejudice; a regulation of law established upon
no slight grounds in order to preserve estates in families, although
every means of PERPETUATING property to individuals, which prevents
its transfer from hand to hand, may in some measure be detrimental to
the public interest. From whence it is a received opinion, that length
of time will give a property in those fees, which were originally
conveyed, not by right of succession, but by virtue of primitive
investiture. Covarruvias, a lawyer of great judgment, supports this
opinion with the strongest arguments in favour of primogeniture, and
applies it to estates left in trust. For nothing can prevent the civil
law from instituting a right, which, though it cannot be lawfully
alienated by the act of one party without consent of the other, yet, to
avoid uncertainty in the tenure of present proprietors, may be lost by
neglect of claim for a length of time. Still the parties thus deprived
may maintain a personal action against those, or their heirs, through
whose neglect their right has been forfeited.
XI. It is an inquiry of importance whether the law of usucaption and
prescription, if it prevail in a prince's dominions, can be applied to
the tenure of the crown, and all its prerogatives. Many legal writers,
who have treated of the nature of sovereign power according to the
principles of the Roman civil law, seem to affirm that it may be so
applied. But this is an opinion to which we cannot accede in its full
extent. For to make a law binding upon any one, it is requisite that
the legislator should possess both power and will. A legislator is not
bound by his law, as by the irrevocable and unchangeable controul of
a superior. But occasions may arise that will demand an alteration
or even a repeal of the law which he has made. Yet a legislator may
be bound by his own law, not directly as a legislator, but as an
individual forming part of the community: and that too according to
natural equity, which requires that all the component parts should bear
a reference to the whole. We find in holy writ, this rule observed by
Saul in the beginning of his reign.
Now that rule does not take place here. For we are considering the
lawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the
whole community. Nor indeed can any such intention in the lawgiver
be presumed to have existed. For legislators are not supposed to
comprehend themselves within the rule of the law, except where the
nature and subject of it are general. But sovereignty is not to be
compared with other things; it so far surpasses them in the nobleness
of its end, and the dignity of its nature. Nor is any civil law to
be found which either does, or designs to comprehend sovereign power
within the rules of prescription.
CHAPTER IX.[22]
IN WHAT CASES JURISDICTION AND PROPERTY CEASE.
Jurisdiction and property cease, when the family of the owner has
become extinct--In what manner the rights of a people may become
extinct--A people becomes extinct when its essential parts are
destroyed--A people does not become extinct by emigration--The
existence of separate states not destroyed by a federal union.
I. and II. After the preceding inquiries into the manner in which
private property as well as sovereign power may be acquired and
transferred, the manner, in which they cease, naturally comes next
under consideration. It has been shewn before that the right to
property may be lost by neglect; for property can continue no longer
than while the will of ownership continues. There is also another
manner in which property may cease to exist, without any express or
implied alienation: and that is where the family either of a sovereign,
or an owner, becomes extinct, a contingency for which provision must
be made somewhat similar to a succession to the property of one who
dies intestate. Wherefore if any one die, without any declaration of
his will, and have no relations by blood, all the right, which he had,
becomes extinct, and reverts, if a sovereign, to the hands of the
nation, except where express provisions of law have been made to the
contrary.
III. The same mode of reasoning applies to a nation. Isocrates, and
after him the Emperor Julian, has said that states are immortal, or
may be so. For a people is one of that kind of bodies which are formed
of distinct parts, following each other in regular succession, and
supplying the place of the deceased. This body goes under one name,
forming, as Plutarch says, one constitution; or, in the language
of Paulus the Lawyer, one spirit. Now the spirit or constitution in
a people is the full and perfect harmony of civil life, from which
emanates the sovereign power, the very soul of all government, and, as
Seneca says, the vital breath which so many thousands draw.
These artificial bodies bear a close resemblance to the natural body,
which, notwithstanding the alteration of its component particles,
loses not its identity, so long as the general form remains. And
therefore in the passage of Seneca, where he says, that no one is the
same in his old age that he was in his youth, he means only as to
natural substance. In the same manner Heraclitus, as cited by Plato
in Cratylus, and Seneca in the place already quoted, has said, that
we cannot descend TWICE into the same river. But Seneca afterwards
corrects himself, adding, that the river retains its name, though the
watery particles of which it is composed are perpetually changing.
So Aristotle, too, in comparing nations to rivers, has said that the
rivers are always called by the same name, though their several parts
are fluctuating every moment. Nor is it the name alone which continues,
but that principle also which Conon calls the constitutional system
of the body, and Philo the spirit, that holds it together. So that a
people, as Alphenus and Plutarch, in speaking of the late, but unerring
approach of divine vengeance, maintain, though not one of its members
of a former period be now living, is the same at present that it was
a hundred years ago, as long as the spirit, which first framed and
afterwards kept the body together, preserves its identity.
Hence has originated the custom, in addressing a people, of ascribing
to them, who are now living, what happened to the same people many ages
before; as may be seen both in profane historians, and in the books of
holy writ. So in Tacitus, Antony the First serving under Vespasian,
reminds the soldiers of the third legion of what they had done in
former times, how under Mark Antony they had beaten the Parthians, and
under Corbulo the Armenians. There was more of prejudice, therefore,
than truth in the reproach, which Piso cast upon the Athenians of his
own time, refusing to consider them as Athenians since they had become
extinct by so many disasters, and were nothing more than a base mixture
of all nations of the earth. We say there was more of prejudice than
truth in this reproach. For though such a mixture might diminish the
dignity, it could not destroy the existence of a people. Nor was he
himself ignorant of this. For he reproaches the Athenians of his
own day with their feeble efforts in former times against Philip of
Macedon, and their ingratitude to their best friends. Now as a change
of its component parts cannot destroy the identity of a people, not
even for a thousand years or more; so neither can it be denied that a
people may lose its existence in two ways; either by the extinction of
all its members, or by the extinction of its form and spirit.
IV. A body is said to die, when its essential parts, and necessary
form of subsistence are destroyed. To the former case may be referred
the instance of nations swallowed up by the sea, as Plato relates, and
others whom Tertullian mentions: or if a people should be destroyed
by an earthquake, of which there are many instances in history, or
should destroy themselves, as the Sidonians and Saguntines did. We are
informed by Pliny, that in ancient Latium, fifty-three nations were
destroyed without a single trace of them remaining.
But what, it may be said will be the case, if out of such a nation so
few remain that they cannot form a people? They will then retain that
property, which they had before as private persons, but not in a public
capacity. The same is the case with every community.
V. A people loses its form, by losing all or some of those rights,
which it had in common; and this happens, either when every individual
is reduced to slavery, as the Mycenaeans, who were sold by the Argives;
the Olynthians by Philip, the Thebans by Alexander, and the Brutians,
made public slaves by the Romans: Or when, though they retain their
personal liberty, they are deprived of the rights of sovereignty. Thus
Livy informs us respecting Capua, that the Romans determined, though it
might be inhabited as a city, that there should be no municipal body,
no senate, no public council, no magistrates, but that deprived of
political deliberation, and sovereign authority, the inhabitants should
be considered as a multitude; subject to the jurisdiction of a Praefect
sent from Rome. Therefore Cicero, in his first speech against Rullus,
says that there was no image of a republic left at Capua. The same
may be said of nations reduced to the form of Provinces, and of those
subjugated by another power; as Byzantium was to Perinthus, by the
Emperor Severus, and Antioch to Laodicea, by Theodosius.
VI. But if a nation should emigrate, either spontaneously, on account
of scarcity or any other calamity, or if by compulsion, which was the
case with the people of Carthage in the third Punic war, while she
retains her form, she does not cease to be a people; and still less so,
if only the walls of her cities be destroyed, and therefore when the
Lacedaemonians refused to admit the Messenians to swear to the peace of
Greece, because the walls of their city were destroyed, it was carried
against them in the General Assembly of the Allies.
Nor does it make any difference in the argument, whatever the form of
government may be, whether regal, aristocratical, or democratical. The
Roman people for instance was the same, whether under kings, consuls,
or emperors. Even indeed under the most absolute form, the people is
the same that it was in its independent state, while the king governs
it as head of that people, and not of any other. For the sovereignty
which resides in the king as the head, resides in the people likewise
as the body of which he is the head; and therefore in an elective
government, if the king or the royal family should become extinct, the
rights of sovereignty, as it has been already shewn, would revert to
the people.
Nor is this argument overthrown by the objection drawn from Aristotle,
who says that, if the form of government is changed, the state no
longer continues to be the same, as the harmony of a piece of music is
entirely changed by a transition from the Doric to the Phrygian measure.
Now it is to be observed, that an artificial system may possess many
different forms, as in an army under one supreme commander there are
many subordinate parts, and inferior powers, while in the operations
of the field it appears but as one body. In same manner, the union of
the legislative and executive in a state gives it the appearance of
one form, while the distinction between subject and sovereign, and
their still mutual relation give it another. The executive power is the
politician's concern; the judicial, the lawyer's. Nor did this escape
the notice of Aristotle. For he says it belongs to a science different
from that of politics to determine whether, under a change in the form
of government, the debts contracted under the old system ought to be
discharged by the members of the new. He does this, to avoid the fault
which he blames in many other writers, of making digressions from one
subject to another.
It is evident that a state, which from a commonwealth has become a
regal government, is answerable for the debts incurred before that
change. For it is the same people, possessing all the same rights,
and powers, which are now exercised in a different manner, being no
longer vested in the body, but in the head. This furnishes a ready
answer to a question some times asked, which is, what place in general
assemblies of different states, ought to be assigned to a sovereign,
to whom the people of a commonwealth have transferred all their power?
Undoubtedly the same place which that people or their representatives
had occupied before in such councils. Thus in the Amphictyonic council,
Philip of Macedon succeeded to the place of the Phocensians. So, on the
other hand, the people of a commonwealth occupy the place assigned to
sovereigns.
VIII.[23] Whenever two nations become united, their rights, as distinct
states, will not be lost, but will be communicated to each other. Thus
the rights of the Albans in the first place, and afterwards those
of the Sabines, as we are informed by Livy, were transferred to the
Romans, and they became one government. The same reasoning holds good
respecting states, which are joined, not by a federal UNION, but by
having one sovereign for their head.
IX. On the other hand, it may happen that a nation, originally forming
but one state, may be divided, either by mutual consent, or by the
fate of war; as the body of the Persian Empire was divided among the
successors of Alexander. When this is the case, many sovereign powers
arise in the place of one, each enjoying its independent rights,
whatever belonged to the original state, in common, must either
continue to be governed as a common concern, or be divided in equitable
proportions.
To this head may be referred the voluntary separation, which takes
place when a nation sends out colonies. For thus a new people as it
were is formed, enjoying their own rights; and as Thucydides says, sent
out not upon terms of slavery, but equality, yet still owing respect
and obedience to their mother-country. The same writer, speaking of
the second colony sent by the Corinthians to Epidamnus, says, "they
gave public notice that such as were willing to go should enjoy equal
privileges with those that staid at home."
CHAPTER X.
THE OBLIGATION ARISING FROM PROPERTY.
Origin and nature of the obligation to restore what belongs to
another--Obligation to restore to the rightful owner the profits
that have accrued from the unjust possession of his personal or
real property--A bona-fide possessor not bound to restitution if
the thing has perished--Such bona-fide possessor bound to the
restitution of the profits remaining in his hands--Bound to make
reparation for the consumption occasioned by his possession--A
possessor not bound to make a recompence for a gift, with an
exception--The sale of any thing that has been bought, obliges the
seller to make restitution, with a certain exception--In what cases
a bona-fide purchaser of what belongs to another may retain the
price, or a part of it--He who has purchased a thing of one who is
not the real owner, cannot return it to that seller--The possessor
of a thing whose real owner is unknown, not bound to give it up
to any one--A person not bound to restore money received upon a
dishonest account, or for service done--Opinion that the property
of things valued by weight, number and measure, may be transferred
without consent of the owner, refuted.
I. Having explained in the preceding part the nature and rights of
property, it remains for us to consider the obligation which we incur
from thence.
Now this obligation proceeds from things either in existence, or not
in existence, comprehending, under the name of things, the right also
over persons, as far as is beneficial to us. The obligation, arising
from things in existence, binds the person, who has our property in
his power, to do all he can to put us again into possession of it. We
have said to do all he can: for no one is bound to an impossibility,
nor to procure the restoration of a thing at his own expence. But he is
obliged to make every discovery which may enable another to recover his
own property. For as in a community of things, it was necessary that a
certain equality should be preserved, to prevent one man from having an
undue share of the common stock; so upon the introduction of property,
it became, as it were, a kind of established rule of society among the
owners, that the person, who had in his possession anything belonging
to another should restore it to the lawful proprietor. For if the right
of property extended no farther than barely to enable the owner to
make a demand of restitution without ENFORCING it by LEGAL PROCESS,
it would rest upon a very weak foundation, and scarce be worth the
holding. Nor does it make any difference, whether a person has fairly
or fraudulently obtained possession of a thing not belonging to him.
For he is equally bound to restore it, both by the positive obligations
of law, and by the principles of natural justice. The Lacedaemonians
had nominally cleared themselves of the crime, by condemning Phaebidas,
who, in violation of their treaty with the Thebans, had seized upon
the citadel of Cadmea, but in reality they where guilty of injustice,
by retaining the possession. And Xenophon has remarked that, such a
singular act of injustice was punished by the signal providence of
God. For the same reason Marcus Crassus, and Quintus Hortensius, are
blamed for having retained part of an inheritance left them by a will,
the making of which had been procured upon false pretences, but in the
management of which they had no share. Cicero blames them, because it
is understood to be settled by general agreement, that all men are to
restore what they are possessed of, if another is proved to be the
rightful owner. A principle by which property is firmly secured, and
upon which all special contracts are founded, and any exceptions to
this rule, contained in them, must be expressly named as such. This
throws light upon the passage of Tryphoninus. "If a robber, _says he_,
has spoiled me of my goods, which he has deposited with Seius, who
knows nothing of the fact; the question is, whether he ought to restore
them to the robber or to me. If we consider him as giving and receiving
on his own account, GOOD FAITH requires that the deposit should be
restored to him who gave it. If we consider the equity of the whole
case, including all the persons concerned in the transaction, the goods
should be restored to me, as the person unjustly deprived of them."
And he properly adds, "I prove it to be strict justice to assign every
one his due, without infringing on the more just claims of another."
Now it has been shewn that the justest title on which any one can
claim, is that which is coaeval with the property itself. From whence
the principle laid down by Tryphoninus, that if any one unknowingly
received goods as a deposit, and afterwards discovers them to be his
own, he is not bound to restore them. And the question, which the same
author puts a little before respecting goods deposited by one, whose
property had been confiscated, is better settled by this principle,
than by what he says elsewhere on the utility of punishment. For as to
the nature of property, it makes no difference, whether it arises from
the law of nations, or from the civil law; as it always carries with it
peculiar qualities, among which may be reckoned the obligation, under
which every possessor lies to restore a thing to its rightful owner.
And hence it is said by Martian, that according to the law of nations,
restitution may be demanded, of those, who have no legal title to the
possession. From the same origin springs the maxim of Ulpian, that
whoever has found a thing belonging to another, is bound to restore it,
even without claiming or receiving a reward for finding it. The profits
also are to be restored, with a deduction only of reasonable charges.
II. Respecting things, non-existent, or whose identity cannot be
ascertained, is a principle generally received among mankind, that
the person, who has become richer by that property, of which the
rightful owner has been dispossessed, is bound to make him reparation
in proportion to the benefit, which he has derived from his property.
For the true proprietor may be justly said to have lost, what HE has
gained. Now the very introduction of property was intended to preserve
that equality, which assigns to every one his own.
Cicero has said, that it is contrary to natural justice, for one man
to improve his own advantage at the expence of another, and in another
place, that nature does not allow us to increase our resources, riches,
and power, from the spoils of others. There is so much of equity in
this saying, that many legal writers have made it the basis of their
definitions, to supply the deficiency of the strict letter of the law,
always appealing to equity as the most sure and clear rule of action.
If any one employ a slave, as his factor, to trade for him, he is bound
by the acts of that factor, unless he has previously given notice that
he is not to be trusted. But even if such notice has been given, where
the factor has a property in the concern, or the master a profit, the
notice shall be deemed a fraud. For, says Proculus, whoever makes
an advantage from the loss of another is guilty of a fraud; a term
implying every thing repugnant to natural justice and equity. He, who,
at the instance of a mother, has put in bail for her son's advocate,
has no action on the case against the advocate for what is called an
assumpsit or undertaking. For it was not strictly his business, which
the advocate managed; the bail was put in at the INSTANCE of the
MOTHER. Yet according to the opinion of Papinian, an action on the
case for the assumpsit, or undertaking will lie against the advocate,
because it is with the bailor's money that he is discharged from the
risque of the costs.
So a wife who has given to her husband money, which she may by law
demand again, has a personal action of recovery against him, or an
indirect action upon any thing purchased with the money. Because, as
Ulpian says, it cannot be denied, that the husband has been richer by
it, and the question is, whether what he possesses belongs to his wife?
If I have been robbed by my slave, and any one has spent the money
under the supposition that it was the slave's own property, an action
may be maintained against that person, as being unjustly in possession
of my property. According to the Roman laws, minors are not answerable
for money borrowed. Yet if a minor has become richer by the loan, an
indirect action will lie against him, or, if anything, belonging to
another, has been pawned and sold by a creditor, the debtor should be
released from the debt in proportion to what the creditor has received.
Because, says Tryphoninus, whatever the obligation may be, since the
money raised accrued from the debt, it is more reasonable that it
should redound to the benefit of the debtor than the creditor. But
the debtor is bound to indemnify the purchaser, for it would not be
reasonable that he should derive gain from another's loss. Now if a
creditor, holding an estate in pledge for his money, has received from
it rents and profits amounting to more than his real debt; all above
that shall be considered as a discharge of so much of the principal.
But to proceed with other cases. If you have treated with my debtor,
not supposing him to be indebted to me, but to another person, and have
borrowed my money of him, you are obliged to pay me; not because I have
lent you money; for that could only be done by mutual consent; but
because it is reasonable and just, that my money, which has come into
your possession, should be restored to me.
The later writers on the law have adduced this kind of reasoning in
support of similar cases. Thus, for instance, if the goods of any one,
who has been cast through default, have been sold, if he can make any
good exception to the decision, he shall be entitled to the money
arising from such sale. Again, when any one has lent money to a father
for the maintenance of his son; if the father should become insolvent,
he may bring an action against the son, provided the son is possessed
of any thing through his mother.
These two rules being perfectly understood, there will be no difficulty
in answering the questions often proposed by Lawyers and Theologians on
such subjects.
III. In the first place it appears, that a person who has obtained
possession of goods by fair means, is not bound to restitution,
if those goods have perished, because they are no longer in his
possession, nor has he derived any advantage from them. The case of
unlawful possession which is left to the punishment of the law is
entirely out of the question.
IV. In the next place a bona-fide possessor of a thing is bound to a
restitution of the fruits or profits thereof remaining in his hand. The
FRUITS or PRODUCE of the THING ITSELF are here meant. For the benefit
derived from a thing owing to the industry bestowed upon it by the
occupier thereof, cannot belong to the thing itself, though originally
proceeding from it. The reason of this obligation arises from the
institution of property. For the true proprietor of a possession is
naturally proprietor of the fruits or produce of the same.
V. Such possessor in the third place is bound to make restitution of
the thing, or reparation for the consumption of it occasioned by his
possession. For he is conceived to have been made the richer thereby.
Thus Caligula is praised for having, in the beginning of his reign,
restored to different Princes along with their crowns, the intermediate
revenues of their kingdoms.
VI. In the fourth place, an occupier of lands, for instance, is not
bound to make a compensation for the produce thereof which he has not
reaped. For if dispossessed, he has neither the thing itself, nor any
thing in the place of it.
VII. In the fifth place, a possessor who has granted to a third person
a thing of which a gift had been made to himself, is not bound to
make a recompence to the original giver, unless he received it under
stipulation, that if he granted it to a third person, and thereby
spared his own property, he should make a return proportionable to such
gain.
VIII. Sixthly, if any one has sold a thing which he has bought, he is
not bound to restitution of more than the surplus arising from the
sale. But if he had received it under stipulation to sell, he is bound
to make restitution of the whole price, unless, in transacting the sale
he has incurred an expence, amounting to the whole price, which he
would not otherwise have done.[24]
IX. Seventhly, a bona-fide purchaser of what belongs to another is
obliged to make restitution to the real owner, nor can the price he
paid be recovered. To this however there seems to be one exception,
which is, where the owner could not have recovered possession without
some expence; so for instance, if his property were in the hands of
pirates. For then a deduction may be made of as much as the owner would
willingly have spent in the recovery. Because the actual possession,
especially of a thing difficult to be recovered, may be ascertained,
and the owner deemed so much the richer by such recovery. And
therefore, though in the ordinary course of law, the purchase of what
belongs to one's self can never constitute a bargain, yet Paulus the
Lawyer says, that it may do so, if it has been originally agreed that
we are to pay for the re-possession of what another has belonging to us
in his hands.
Nor is it in the least material, whether a thing has been bought with
an intention of restoring it to the owner; in which case, some say,
that an action for costs may be maintained, whilst others deny it. For
an action on the case, to recover a compensation for business done
arises from the artificial rules of CIVIL LAW, and not solely from
the simple dictates of natural justice; which are here the principal
subject of inquiry.
Not unlike to this is what Ulpian has written on funeral expences, in
which he says, that a compassionate judge will not rigidly regard the
bare labour that has been given, but allowing some relaxation in favour
of equity, will shew indulgence to the feelings of human nature.
The same writer, in another place has said, that if any one has
transacted my business, not out of regard to me, but for his own
interest, and has incurred expence on my account, he may bring an
action on the case, not for what he has given, but for what I have
gained by his labour and expence.
In the same manner, owners, by throwing whose goods overboard a ship
has been lightened, may recover a compensation from others whose goods
were by that means saved. Because those persons are considered so much
the richer by the preservation of what would otherwise have been lost.
X. Eighthly, the person that has bought a thing of one, who is not the
owner, cannot return it to that seller; because from the time that the
thing came into his possession, he incurred an obligation to restore it
to the lawful owner.
XI. Again, if any one is in possession of a thing, whose real owner is
unknown, he is not naturally, and necessarily bound to give it to the
poor; although this may be considered as an act of piety, a custom very
properly established in some places. The reason of which is founded
on the introduction of property. For, in consequence of that, no one
except the real owner, can claim a right to any thing. To the person
therefore, who cannot discover such an owner, it is the same as if
there really were none.
XII. Lastly, a person is not obliged by the law of nature to restore
money, which has been received upon a dishonest account, or for the
performance of a legal act, to which that person was of himself
bound. However it is not without reason that some laws have required
restitution in such cases. The reason of this is, because no one is
bound to part with any thing unless it belongs to another. But here the
property is voluntarily transferred by the first owner.
The case will be altered, if there be any thing iniquitous in the
manner of acquiring the thing; as if, for instance, it be gained
by extortion. This gives rise to the obligation of submitting to
penalties, which is not immediately to the present purpose.
XIII. The present subject may be concluded with a refutation of
Medina's false opinion, that a property in things, belonging to
another, may be transferred without consent of the owner; provided
the things are such as are usually valued by weight, number and
measure. Because things of that nature can be repaid in kind, or by an
equivalent. But this is only, where such a mode of repayment has been
previously agreed upon; or where it is understood to be established by
law or custom; or where the thing itself has been consumed, and cannot
be identically restored. But without such consent, either expressed
or implied, or excepting the impossibility just mentioned, the things
themselves must be restored.
CHAPTER XI.
ON PROMISES.
Opinion, that the obligation to fulfil promises is not enacted
by the law of nature, refuted--A bare assertion not binding--A
promiser bound to fulfil his engagements, though no right to exact
the performance of them, is thereby conveyed to another--What
kind of promise gives such right--The promiser should possess
the right use of reason--Difference between natural and civil
law with respect to minors--Promises made under an error, or
extorted by fear, how far binding--Promises valid, if in the
power of the promiser to perform them--Promise made upon unlawful
considerations, whether binding--Manner of confirming the promises
made by others, and the conduct of Ambassadors who exceed their
instructions, considered--Owners of ships, how far bound by the
acts of the masters of such vessels, and merchants by the acts
of their factors--Acceptance requisite to give validity to a
promise--Promises sometimes revokable--The power of revoking a
promise, explained by distinctions--Burdensome conditions annexed
to a promise--Means of confirming invalid promises--Natural
obligation arising from engagements made for others.
I. The course of the subject next leads to an inquiry into the
obligation of promises.[25] Where the first object, that presents
itself, is the opinion of Franciscus Connanus, a man of no ordinary
learning. He maintains an opinion that the law of nature and of nations
does not enforce the fulfilment of those agreements, which do not
include an express contract.[26] Yet the fulfilment of them is right,
in cases, where, even without a promise, the performance would be
consonant to virtue and equity. In support of his opinion, he brings
not only the sayings of Lawyers, but likewise the following reasons. He
says, that the person, who makes, and he who believes, a rash promise,
are equally to blame. For the fortunes of all men would be in imminent
danger, if they were bound by such promises, which often proceed from
motives of vanity rather than from a settled deliberation, and are
the result of a light and inconsiderate mind. Lastly, the performance
of whatever is any way just in itself, ought to be left to the free
will of every one, and not exacted according to the rigid rules of
necessity. He says that it is shameful not to fulfil promises; not
because it is unjust, but because it argues a levity in making them.
In support of his opinion, he appeals also to the testimony of Tully,
who has said, that those promises are not to be kept, which are
prejudicial to the person to whom they are made, nor, if they are
more detrimental to the giver than beneficial to the receiver. But
if the performance of an engagement is begun upon the strength of a
promise, but not finished, he does not require a complete fulfilment
of the promise, but only some compensation to the party for the
disappointment. Agreements, he continues, have no intrinsic force of
obligation, but only what they derive from the express contracts, in
which they are included, or to which they are annexed, or from the
delivery of the thing promised. From whence arise actions, on the one
side, and exceptions on the other, and bars to all claims of recovery.
But it is through favour of the laws alone, which give the efficacy
of obligation to what is only fair and equitable in itself, that
obligatory agreements, such as express covenants and other things of
that kind, derive their force.
Now there is no consistency in this opinion, taken in the general sense
intended by its author. For in the first place it immediately follows
from thence, that there is no force in treaties between kings and
different nations, till some part of them be carried into execution,
especially in those places, where no certain form of treaties or
compacts has been established. But no just reason can be found, why
laws, which are a kind of general agreement among a people, and indeed
are called so by Aristotle, and Demosthenes, should be able to give the
force of obligation to compacts, and why the will of an individual,
doing every thing to bind himself, should not have the same power;
especially where the civil law creates no impediment to it. Besides,
as it has been already said that the property of a thing may be
transferred, where a sufficient indication of the will is given. Why
may we not then convey to another the right to claim a transfer of our
property to him, or the fulfilment of our engagements, as we have the
same power over our actions, as over our property?
This is an opinion confirmed by the wisdom of all ages. For as it
is said by legal authorities, that since nothing is so consonant to
natural justice, as for the will of an owner, freely transferring his
property to another, to be confirmed, so nothing is more conducive to
good faith among men, than a strict adherence to the engagements they
have made with each other. Thus a legal decision for the payment of
money, where no debt has been incurred, except by the verbal consent of
the party promising, is thought conformable to natural justice. Paulus
the Lawyer also says, that the law of nature and the law of nations
agree in compelling a person, who has received credit, to payment. In
this place the word, COMPELLING, signifies a moral obligation. Nor
can what Connanus says be admitted, which is, that we are supposed to
have credit for a full performance of a promise, where the engagement
has been in part fulfilled. For Paulus in this place is treating of an
action where nothing is due; which action is entirely void, if money
has been paid, in any way, whether according to the manner expressly
stipulated, or any other. For the civil law, in order to discourage
frequent causes of litigation, does not interfere with those agreements
which are enforced by the law of nature and of nations.
Tully, in the first book of his Offices, assigns such force to the
obligation of promises, that he calls fidelity the foundation of
justice, which Horace also styles the sister of justice, and the
Platonists often call justice, TRUTH, which Apuleius has translated
FIDELITY, and Simonides has defined justice to be not only returning
what one has received, but also speaking the truth.
But to understand the matter fully, we must carefully observe that
there are three different ways of speaking, respecting things which
ARE, or which, it is supposed, WILL be in our power.
II. The first of these ways is, where an assurance is given of future
intentions, and if the assurance be SINCERE at the time it is given,
though it should not be carried into effect, no blame is incurred, as
it might afterwards not be found expedient. For the human mind has not
only a natural power, but a right to change its purpose. Wherefore if
any blame attaches to a change of opinion, or purpose, it is not to be
imputed to the BARE ACT OF CHANGING, but to the CIRCUMSTANCES, under
which it happens, especially when the former resolution was the best.
III. The second way is, when future intentions are expressed by outward
acts and signs sufficient to indicate a resolution of abiding by
present assurances. And these kind of promises may be called imperfect
obligations, but conveying to the person to whom they are given no
RIGHT to exact them. For it happens in many cases that we may be under
an obligation of duty, to the performance of which another has no right
to compel us. For in this respect the duty of fidelity to promises, is
like the duties of compassion and gratitude. In such kinds of promises
therefore the person to whom they are made, has no right, by the law of
nature to possess himself of the effects of the promiser, as his own,
nor to COMPEL him to the performance of his promise.
IV. The third way is, where such a determination is confirmed by
evident signs of an intention to convey a peculiar right to another,
which constitutes the perfect obligation of a promise, and is attended
with consequences similar to an alienation of property.
There may be two kinds of alienation, the one of our property, the
other of a certain portion of our liberty. Under those of the former
kind we may class the promises of gifts, and under the latter the
promises of doing certain actions. On this subject we are supplied
with noble arguments from the divine oracles, which inform us, that
God himself, who can be limited by no established rules of law, would
act contrary to his own nature, if he did not perform his promises.
From whence it follows that the obligations to perform promises spring
from the nature of that unchangeable justice, which is an attribute of
God, and common to all who bear his image, in the use of reason. To
the proofs of scripture here referred to, we may add the judgment of
Solomon, "My son if thou hast been surety for thy friend, thou hast
tied up thy hands to a stranger; thou art ensnared by the words of thy
mouth, then art thou taken by the words of thine own mouth." Hence a
promise is called by the Hebrews a bond or chain, and is compared to a
vow. Eustathius in his notes on the second book of the Iliad, assigns a
similar origin to the word ὑποσχεσεως {hyposcheseôs} or engagement. For
he who has received the promise, in some measure takes and holds the
person, that has made the engagement. A meaning not ill expressed by
Ovid in the second book of his Metamorphoses, where the promiser says
to him, to whom he had promised, "My word has become yours."
After knowing this, there remains no difficulty in replying to the
arguments of Connanus. For the expressions of the lawyers, respecting
BARE PROMISES, refer only to what was introduced by the Roman laws,
which have made a FORMAL STIPULATION the undoubted sign of a deliberate
mind.
Nor can it be denied that there were similar laws among other nations.
For Seneca, speaking of human laws, and promises made without proper
solemnities, says, "What law, _of any country, we may add_, obliges us
to the performance of bare promises?" But there may naturally be other
signs of a deliberate mind, besides a formal stipulation, or any other
similar act which the civil law requires, to afford grounds for a legal
remedy. But what is not done with a deliberate mind, we are inclined
to believe does not come under the class of perfect obligations; as
Theophrastus has observed in his book on laws. Nay, even what is done
with a deliberate mind, but not with an intention of conceding our
own right to another; though it cannot give any one a natural right
of exacting its fulfilment, yet it creates an obligation not only in
point of duty, but in point of moral necessity. The next matter to be
considered is, what are the requisites to constitute a perfect promise.
V. The use of reason is the first requisite to constitute the
obligation of a promise, which ideots, madmen, and infants are
consequently incapable of making. The case of minors is somewhat
different. For although they may not have a sound judgment, yet it is
not a permanent defect, nor sufficient of itself to invalidate all
their acts. It cannot be certainly defined at what period of life
reason commences. But it must be judged of from daily actions, or from
the particular customs of each country. Amongst the Hebrews a promise
made by a male at the age of thirteen, and by a female at the age of
twelve, was valid. In other nations, the civil laws, acting upon just
motives, declare certain promises made by wards and minors to be void,
not only among the Romans, but among the Greeks also, as it has been
observed by Dion Chrysostom in his twenty-fifth oration. To do away
the effect of improvident promises, some laws introduce actions of
recovery, or restitution. But such regulations are peculiar to the
civil law, and have no immediate connection with the law of nature and
of nations, any farther than that wherever they are established, it is
consonant to natural justice that they should be observed. Wherefore
if a foreigner enter into an agreement with a citizen or subject of
any other country; he will be bound by the laws of that country, to
which, during his residence therein, he owes a temporary obedience.
But the case is different, where an agreement is made upon the open
sea, or in a desert island, or by letters of correspondence. For such
contracts are regulated by the law of nature alone, in the same manner
as compacts made by sovereigns in their public capacity.
VI. The consideration of promises, made under an error, is a subject
of some intricacy. For it, in general, makes a difference, whether
the promiser knew the full extent of his promise, and the value of
the thing promised, or not, or whether the contract, which was made,
originated in fraudulent intention, or not, or whether one of the
parties was privy to the fraud; and whether the fulfilment of it was
an act of strict justice, or only of good faith. For according to
the variety of these circumstances, writers pronounce some acts void
and others valid, leaving the injured party a discretionary power to
rescind or amend them.
Most of these distinctions originate in the ancient civil, and
praetorian Roman law. Though some of them are not strictly founded in
reason and truth. But the most obvious and natural way of discovering
the truth is by referring to laws, which derive their force and
efficacy from the general consent of mankind; so that if a law rests
upon the presumption of any fact, which in reality has no existence,
such a law is not binding. For when no evidence of the fact can be
produced, the entire foundation, on which that law rests must fail. But
we must have recourse to the subject, to the words and circumstances of
a law, to determine when it is founded on such a presumption.[27]
The same rule applies to the interpretation of promises. For where they
are made upon the supposition of a fact, which in the end proves not
to be true, they lose the force of obligations. Because the promiser
made them upon certain conditions only, the fulfilment of which becomes
impossible. Cicero, in his first book on the talents and character of
an orator, puts the case of a father, who, under the supposition or
intelligence that his son was dead, promised to devise his property to
his nephew. But the supposition proving erroneous, and the intelligence
false, the father was released from the obligation of the promise made
to his relative. But if the promiser has neglected to examine the
matter, or has been careless in expressing his meaning, he will be
bound to repair the damage which another has sustained on that account.
This obligation is not built on the strength of the promise, but on the
injury, which it has occasioned. An erroneous promise will be binding,
if the error was not the OCCASION of the promise. For here there is
no want of consent in the party, who made it. But if the promise was
obtained by fraud, the person so obtaining it shall indemnify the
promiser for the injury sustained, if there has been any partial error
in the promise, yet in other respects it shall be deemed valid.
VII. Promises extorted by fear are a subject of no less intricate
decision. For here too a distinction is usually made between a
well founded and a chimerical fear, between a just fear and a bare
suspicion, and between the persons who occasion it, whether it be the
person to whom the promise is given, or some other. A distinction
is also made between acts purely gratuitous, and those in which
both parties have an interest. For according to all this variety of
circumstances some engagements are considered as void, others as
revocable at the pleasure or discretion of the maker, and others as
warranting a claim to indemnity for the inconvenience occasioned. But
on each of these points there is great diversity of opinion.
There is some shew of reason in the opinion of those who, without
taking into consideration the power of the civil law to annul or
diminish an obligation, maintain that a person is bound to fulfil a
promise which he has given under impressions of fear. For even in
this case there was CONSENT, though it was extorted; neither was it
conditional, as in erroneous promises, but absolute. It is called
CONSENT. For as Aristotle has observed, those who consent to throw
their goods overboard in a storm, would have saved them, had it
not been for the fear of shipwreck. But they freely part with them
considering all the circumstances of time and place.
VIII. To render a promise valid, it must be such as it is in the power
of the promiser to perform. For which reason no promises to do illegal
acts are valid; because no one either has, or ever can have a right to
do them. But a promise, as was said before, derives all its force from
the right of the promiser to make it, nor can it extend beyond that.
If a thing is not now in the power of the promiser, but may be so at
some future time; the obligation will remain in suspense. For the
promise was only made under the expectation of some future ability
to fulfil it. But if a person has a controul over the condition upon
which the promise is made, to realise it or not, he lies under a moral
obligation to use every endeavour to fulfil it. But in obligations of
this kind also, the civil law, from obvious motives of general utility,
occasionally interposes its authority to make them void: obligations,
which the law of nature would have confirmed.
IX. The next general inquiry, for the most part, refers to the validity
of promises made upon any immoral or unlawful consideration; as if,
for instance, any thing is promised to another on condition of his
committing a murder. Here the very promise itself is wicked and
unlawful, because it encourages the commission of a crime. But it does
not follow every FOOLISH or IMPROVIDENT promise loses the force of an
obligation, as in the confirmation of imprudent or prodigal grants, for
no further evil can result from a confirmation of what has been already
given: and the invalidity of promises would be a greater evil than any
that could result from a confirmation of the most improvident. But in
promises made upon IMMORAL and UNLAWFUL considerations, there is always
a criminality remaining, even while they continue unfulfilled. For
during the whole of that time, the expectation of fulfilment carries
with it the indelible mark of encouragement to the commission of a
crime.
XII.[28] We are obliged to confirm the engagements made by others,
acting in our name, if it is evident that they had special, or general
instructions from us to do so. And in granting a commission with full
powers to any one, it may so happen that we are bound by the conduct
of that agent, even if he exceed the secret instructions which he has
received. For he acts upon that ostensible authority, by which we are
bound to ratify whatever he does, although we may have bound him to do
nothing but according to his private instructions. This rule, we must
observe, applies to the promises made by ambassadors in the name of
their sovereigns, when, by virtue of their public credentials, they
have exceeded their private orders.
XIII. From the preceding arguments, it is easy to understand how far
owners of ships are answerable for the acts of the masters employed by
them in those vessels, or merchants for the conduct of their factors.
For natural equity will qualify the actions brought against them,
according to the instructions and powers which they give. So that we
may justly condemn the rigour of the Roman law, in making the owners
of ships absolutely bound by all the acts of the masters employed. For
this is neither consonant to natural equity, which holds it sufficient
for each party to be answerable in proportion to his share, nor is it
conducive to the public good. For men would be deterred from employing
ships, if they lay under the perpetual fear of being answerable for the
acts of their masters to an unlimited extent. And therefore in Holland,
a country where trade has flourished with the greatest vigour, the
Roman law has never been observed either now or at any former period.
On the contrary, it is an established rule that no action can be
maintained against the owner for any greater sum than the value of the
ship and cargo.
For a promise to convey a right, acceptance is no less necessary than
in a transfer of property. And in this case there is supposed to have
been a precedent request, which is the same as acceptance. Nor is this
contradicted by the promises which the civil law implies every one to
have made to the state, WITHOUT ANY REQUEST OR FORMAL ACCEPTANCE.
XIV. A reason which has induced some to believe that the sole act of a
promiser, by the law of nature, is sufficient. Our first position is
not contradicted by the Roman law. For it no where says, that a promise
has its full effect before acceptance, but only forbids the revocation
of it which might prevent acceptance: and this effect results, not from
NATURAL but from purely LEGAL rules.
XV. Another question is, whether the acceptance alone of a promise is
sufficient, or whether it ought to be communicated to the promiser
before it can be made binding.
It is certain that a promise may be made two ways, either upon
condition of its being fulfilled, if accepted, or upon condition of its
being ratified, if the promiser is apprised of its being accepted. And
in cases of mutual obligation, it is presumed to be taken in the latter
sense; but it is better to take promises that are purely gratuitous in
the former sense, unless there be evidence to the contrary.
XVI. From hence it follows, that a promise may be revoked, without the
imputation of injustice or levity, BEFORE ACCEPTANCE, as no right has
yet been conveyed; especially if ACCEPTANCE were made the condition
of its being fulfilled. It may be revoked too if the party to whom it
was made, should die before acceptance. Because it is evident that
the power to accept it or not, was conferred upon HIM, and not upon
his HEIRS. For to give a man a right, which may POSSIBLY descend to
his heirs, is one thing, and to express an intention of giving it to
his heirs is another. For it makes an essential difference upon what
person the favour is conferred. This is understood in the answer made
by Neratius, who said, that he did not believe the prince would have
granted to one who was dead, what he granted, supposing him still alive.
XVII. A promise may be revoked, by the death of the person appointed
to communicate to a third the intention of the promiser. Because the
obligation to the third person rested upon such communication. The
case is different, where a public messenger is employed, who is not
himself the obligatory instrument, but only the means through which it
is conveyed. Therefore letters indicating a promise, or consent may be
conveyed by any one. Yet there is a distinction to be made between a
minister appointed to communicate a promise, and one appointed to make
the promise in his own name.
For in the former case, a revocation will be valid, even though it
has not been made known to the minister employed; but in the latter
case, it will be entirely void, because the right of promising was
committed to the minister, and fully depended upon his will; therefore
the obligation of the promise was complete, as he knew of no intended
revocation. So also in the former case, where a second person is
commissioned to communicate the intentions of a donor to a third; even
if the donor should die, the acceptance of the gift will be deemed
valid, all that was requisite being performed on one part; though till
that period the intention was revocable, as is evident in the case of
bequests. But in the other case, where a person has received a full
commission to execute a promise during the LIFE of the donor, should
the donor die before the execution of it, and the person employed be
apprised of his death; the commission, the promise, and the acceptance
of it will then, at once, become void.
In doubtful cases, it is reasonable to suppose that it was the
intention of the promiser, that the commission which he gave should
be executed, unless some great change, as for instance, his own death
should occur. Yet reasons in favour of a contrary opinion may easily
be found and admitted, especially with respect to pious donations,
which, at all events, ought to stand good. And in the same manner may
be decided the long disputed question, whether an action on account of
such a bequest could be brought against the heir. Upon which the author
of the second book to Herennius says, that Marcus Drusus the praetor
decided one way, and Sextus Julius another.
XVIII. The acceptance of a promise for a third person is a matter
subject to discussion, in which there is a distinction to be observed
between a promise made to a person of a thing, which is to be given to
another, and a promise made directly to the person himself, on whom
the former is to be conferred. If a promise is made to any one, where
his own personal interest is not concerned, a consideration introduced
by the Roman law, by acceptance he seems naturally to acquire a right
which may be transferred to another for HIS acceptance, and this right
will pass so fully, that in the mean time the promise cannot be revoked
by the person who gave, though it may be released by him who received
it. For that is a meaning by no means repugnant to the law of nature,
and it is entirely conformable to the words of such a promise; nor can
it be a matter of indifference to the person, through whom another is
to receive a benefit.
But if a promise is made directly to one, on whom a thing is to be
conferred, a distinction must be made, whether the person receiving
such a promise has SPECIAL commission for acceptance, or one so GENERAL
as to include acceptance, or has it not. When a commission has been
previously given, no farther distinction is necessary, whether the
person be free or not, a condition which the Roman laws require. But it
is plain that from such an acceptance, let the condition of the person
be what it will, the promise is complete: because consent may be given
and signified through the medium of another. For a person is supposed
to have fully intended, what he has put into the power of another to
accept or refuse.
Where there is no such commission, if another, to whom the promise
was not directly made, accepts it with the consent of the promiser,
the promise will be so far binding, that the promiser will not be at
liberty to revoke it, before the person, in whose favour it was made
has ratified, and afterwards chosen to release the engagement. Yet, in
the mean time, the accepter cannot release it, as having derived no
peculiar right from it himself, but only been used as an instrument
in promoting the kind intentions and good faith of the promiser. The
promiser therefore himself, by revoking it, is not doing violence to
the perfect right of another, but only acting in contradiction his own
good faith.
XIX. From what has been said before, it is easy to conceive what
opinion ought to be entertained of a burdensome condition annexed to
a promise. For it may be annexed at any time, till a promise has been
completed by acceptance, or an irrevocable pledge to fulfil it has been
given. But the condition of a burden annexed to a favour intended to
be conferred upon a third person, through the medium of any one, may
be revoked before the person has confirmed it by his acceptance. On
this point there is great difference of opinion. But upon impartial
consideration the natural equity of any case may be easily seen without
any great length of arguments.
XX. XXI. XXII. Another point of discussion relates to the validity of
an erroneous promise, when the person, who made it, upon being apprised
of his error is willing to adhere to his engagement. And the same
inquiry applies to promises, which, arising out of fear or any other
such motive, are prohibited by the civil law. What, it may be asked,
will become of these promises, if that fear, or that motive has been
removed?
To confirm such obligations, some think an internal consent of the mind
alone in conjunction with some previous external act is sufficient.
Others disapprove of this opinion, because they do not admit that an
external act is a real sign of a subsequent intention. Therefore they
require an express repetition of the promise and acceptance. Between
these two opinions, the truth is most likely to be found. There may
be an external act expressive of a promise, though unaccompanied with
words; where one party's accepting and retaining a gift, and the
other's relinquishing his right in it are sufficient to constitute a
full consent.
To prevent civil laws from being confounded with natural justice, we
must not omit noticing, in this place, that promises though founded in
no EXPRESS motive, are not, any more than gifts, void by the law of
nature.
Nor is a person who has engaged for another's performing any thing,
bound to pay damages and interest for neglect, provided he has done
every thing that was necessary on his part towards obtaining its
accomplishment. Unless the express terms of the agreement, or the
nature of the business require a stricter obligation, positively
declaring that, under all circumstances whatever, the thing shall be
performed.
CHAPTER XII.
ON CONTRACTS.
Human actions divided into simple or mixed--Gratuitous,
or accompanied with mutual obligation--Acts by way
of exchange, adjustment of what is to be given or
done--Partnership--Contracts--Previous equality--As to knowledge
of all circumstances--As to freedom of consent, requisite in
contracts of exchange, of sale, of commission and loan--Price
of things in what manner to be rated--Transfer of property by
sale--What kind contrary to the law of nature--Money--Its use as
the standard value of all things--No abatement in the rent or hire
of a thing on account of ordinary accidents--Increase or diminution
of just salaries--Usury, by what law forbidden--Interest not
coming under the name of usury--Insurance--Partnerships of Trade,
Naval Associations--Inequality in the terms of a contract no way
repugnant to the law of nations.
I. and II. Of all human actions, wherein the interest of others is
concerned, some are simple, and some are mixed. In those of the former
description all service is purely gratuitous, but in the latter it is
a traffic of exchange. In the one case the service is granted without
a requital, but in the other it is accompanied with an obligation on
both sides. Gratuitous services are either immediate in their effect,
or to take place at some future time. A beneficial service may be said
to be immediately performed, when it confers an advantage, to which
the person so benefitted has no direct or absolute right. As a gift
transfers property, where there is no previous right. A subject, which
has been already discussed. And promises may be said to relate to some
future gift, or action, of which a full and sufficient explanation has
before been given.
Services accompanied with mutual obligation are those where the use
of a thing is allowed to any one without a complete alienation, or
where labour is given in expectation of some valuable consideration.
Under the first of these heads we may reckon the loan and use of all
consumable or inconsumable property: and under the latter we may place
all commissions to transact business, or all trusts to preserve the
property of another. Similar to which are all promises of something to
be done, except that they regard a future time. And in this view we
may consider all the actions, which are now to be explained.
III. In all acts of exchange, there is either an adjustment of shares,
or the profits are regarded as a common stock. And such adjustments
are made by the Roman Lawyers in the following terms, "I give this
to receive that in return, I do this in order for you to do that, or
I do this for you to give me that."[29] But the Romans exclude from
that adjustment certain kinds of contracts, which they call EXPRESS
ENGAGEMENTS. Not because they are entitled to any such peculiar name
more than the simple acts of exchange already mentioned: but because
from frequent use they have naturally derived a character similar to
that of the original contract, from which they are named, though they
are not attended exactly with the same circumstances, nor expressed
directly in the same terms. Whereas in other contracts less frequently
in use, the form was confined to an exact statement of all the
circumstances of the case. An action upon which was therefore called by
the Roman law an ACTION IN PRESCRIBED WORDS.
For the same reason, if those contracts, which are in general use, be
accompanied with any of the requisite formalities, as in a bargain
or sale, if the price had been agreed upon, though no part of the
agreement had been performed by either of the parties, the civil law
enforced an obligation to fulfil them. But as it considers those
contracts which are seldom used, more in the light of voluntary
engagements, depending upon the good faith of the respective parties,
than upon legal obligation, it leaves both sides at liberty to
relinquish them at any time prior to their being naturally performed.
Distinctions of this kind are unknown to the law of nature, which
gives SIMPLE AGREEMENTS equal authority with those, that are included
by civilians in the class of EXPRESS CONTRACTS. And on the score of
antiquity their pretensions are far superior. It is therefore perfectly
conformable to the principles of nature to reduce the adjustment of
all agreements, without any regard to the distinction between SIMPLE
and EXPRESS CONTRACTS, to the three species already named. Thus, for
instance, one thing is given for another, which constitutes barter,
the most ancient kind of traffic; the next step in the progress of
commercial intercourse is where one kind of money is given for another,
a transaction which by merchants is called exchange; and a third
species of contract is where money is given for any thing, as in the
acts of selling and buying. Or the USE of one thing may be given for
that of another; money also may be given for the USE of a thing, which
last method constitutes the acts of letting and hiring.
The term use is to be understood here as applied not only to the bare
unproductive use of a thing, but to that which is attended with profit,
whether it be temporary, personal, hereditary or circumscribed, as
was the case among the Hebrews with regard to transfers, which could
be made for no longer a time than till the year of Jubilee. The very
essence of a loan consists in a return of the same kind of thing
after a stated period. A return which can take place only in things
regulated by weight, number, or measure, whether it be in commodities
or money. But the exchange of labour branches out into various kinds of
recompence or return. As, for instance, a person gives his labour for
money, which in the daily transactions of life is called hire or wages:
where one undertakes to indemnify another for accidental losses or
damages, it is called insurance: a species of contract scarce known to
the ancients, but now forming a very important branch in all mercantile
and maritime concerns.
IV. Acts of communication are those, where each contributes a share
to the joint stock. Perhaps on one side, money, and on the other,
skill and labour may be given. But in whatever way these concerns are
regulated, they come under the denomination of partnerships. With this
class we may rank the alliances of different states in war. And of
the same description are those naval associations of individuals, so
frequently formed in Holland for protection against pirates or other
invaders, which is generally called an ADMIRALTY, and to which the
Greeks gave the name of a joint fleet.
V. and VI. Now mixed actions are either such in themselves, or made so
by some adventitious circumstance. Thus if I knowingly give one person
a greater price for a thing than I can purchase it for of another, the
excess of price may be considered partly as a gift, and partly as a
purchase. Or if I engage a goldsmith to make me any article with his
own materials, the price which I give will be partly a purchase, and
partly wages. The feudal system too might be considered as a train of
mixed contracts. Where the grant of the fee might be considered as
a beneficial act; but the military service required by the Lord, in
return for his protection, gave the fee the nature of a contract, where
a person did one thing expecting for it the performance of another. But
if any payment is attached to it by way of acknowledgement, it partakes
of the nature of a quit rent. So money sent to sea by way of venture is
something compounded of a contract, of a loan, and of an insurance.
VII. All acts beneficial to others, except those that are purely
gratuitous, come under the denomination of contracts.
VIII. In all contracts, natural justice requires that there should be
an equality of terms: insomuch that the aggrieved party has an action
against the other for overreaching him. This equality consists partly
in the performance, and partly in the profits of the contract, applying
to all the previous arrangements, and to the essential consequences of
the agreement.
IX. As to an equality of terms previous to the contract, it is evident
that a seller is bound to discover to a purchaser any defects,
which are known to him, in a thing offered for sale; a rule not
only established by civil laws, but strictly conformable to natural
justice. For the words of agreement between contracting parties are
even stronger than those, on which society is founded. And in this
manner may be explained the observation of Diogenes the Babylonian,
who in discussing this topic said, it is not every degree of silence,
which amounts to concealment; nor is one person bound to disclose
every thing, which may be of service to another. Thus for instance, a
man of science is not strictly bound to communicate to another that
knowledge, which might redound to his advantage. For contracts, which
were invented to promote a beneficial intercourse among mankind,
require some closer and more intimate connection than bare good-will
to enforce their obligation. Upon which Ambrose has justly remarked,
"that, in contracts, the faults of things exposed to sale ought to be
made known, of which unless the seller has given intimation, though he
may have transferred the right of property by sale, yet he is liable to
an action of fraud."
But the same cannot be said of things not coming under the nature
of contracts. Thus if any one should sell his corn at a high price,
when he knows that many ships laden with grain are bound for that
place, though it would be an act of kindness in him to communicate
such intelligence to the purchasers, and though no advantage could be
derived to him, from withholding the communication, but at the expence
of charity, yet there is nothing unjust in it, or contrary to the
general rules of dealing. The practice is vindicated by Diogenes in
the passage of Cicero alluded to, he says, "I carried my commodities
and offered them to sale, in selling them I demanded no greater price
than others did; if the supply had been greater I would have sold them
for less, and where is the wrong done to any one?" The maxim of Cicero
therefore cannot generally be admitted, that, knowing a thing yourself,
to wish another, whose interest it is to know it also, to remain
ignorant of it, merely for the sake of your own advantage, amounts to
a fraudulent concealment. By no means; for that only is a fraudulent
concealment which immediately affects the nature of the contract:
as for instance, in selling a house, to conceal the circumstance of
its being infected with the plague, or having been ordered by public
authority to be pulled down. But it is unnecessary to mention, that
the person, with whom a seller treats, ought to be apprised of every
circumstance attending the thing offered for sale; if it be lands,
whether the tenure be subject to a rent-charge, or service of any kind,
or be entirely free.
X. and XI. Nor is the equality that has been explained confined solely
to the communication of all the circumstances of the case to the
contracting parties, but it includes also an entire freedom of consent
in both.
In the principal act itself, the proper equality requires that no more
should be demanded either party than what is just. Which can scarce
have a place in gratuitous acts. To stipulate for a recompence in
return for a loan, or for the service of labour or commission is doing
no wrong, but constitutes a kind of mixed contract, partaking of the
nature of a gratuitous act, and an act of exchange. And in all acts
of exchange, this equality is to be punctually observed. Nor can it
be said that if one party promises more, it is to be looked upon as a
gift. For men never enter into contracts with such intentions, nor
ought the existence of such intentions ever be presumed, unless they
evidently appear. For all promises or gifts, in these cases, are made
with an expectation of receiving an equivalent in return. "When, _in
the words of Chrysostom_, in all bargains and contracts, we are anxious
to receive MORE and give LESS than is due, what is this but a species
of fraud or robbery?" The writer of the life of Isidorus in Photius,
relates of Hermias, that when any thing, which he wished to purchase
was valued at too low a rate, he made up the deficiency of the price,
thinking that to act otherwise was a species of injustice, though it
might escape the observation of others. And in this sense, may be
interpreted the law of the Hebrews.
XII. There remains another degree of equality to be considered, arising
out of the following case. It may happen in contracts that although
nothing is concealed, which ought to be made known, nor more exacted
or taken by one party than is due, yet there may be some inequality
without any fault in either of the parties. Perhaps, for instance there
might be some unknown defect in the thing, or there might be some
mistake in the price. Yet, in such cases, to preserve that equality,
which is an essential requisite in all contracts, the party suffering
by such defect or mistake, ought to be indemnified by the other. For in
all engagements it either is, or ought to be a standing rule, that both
parties should have equal and just advantages.
It was not in every kind of equality that the Roman law established
this rule, passing over slight occasions, in order to discourage
frequent and frivolous litigation. It only interposed its judicial
authority in weighty matters, where the price exceeded the just value
by one half. Laws indeed, as Cicero has said, have power to compel, or
restrain men, whereas philosophers can only appeal to their reason or
understanding. Yet those, who are not subject to the power of civil
laws ought to comply with whatever reason points out to them to be
just: So too ought they, who are subject to the power of human laws, to
perform whatever natural and divine justice requires, even in cases,
where the laws neither give nor take away the right, but only forbear
to enforce it for particular reasons.
XIII. There is a certain degree of equality, too, in beneficial or
gratuitous acts, not indeed like that prevailing in contracts of
exchange, but proceeding upon a supposition of the hardship, that
any one should receive detriment from voluntary services, which he
bestows. For which reason a voluntary agent ought to be indemnified
for the expence or inconvenience, which he incurs, by undertaking the
business of another. A borrower too is bound to repair a thing that has
been damaged or destroyed. Because he is bound to the owner not only
for the thing itself, by virtue of the property which he retains in
it, but he owes a debt of gratitude also for the favour of the loan;
unless it appears that the thing so lent would have perished, had it
even remained in possession of the owner himself. In this case, the
owner loses nothing by the loan. On the other hand, the depositary has
received nothing but a trust. If the thing therefore is destroyed, he
cannot be bound to restore what is no longer in existence, nor can he
be required to make a recompence, where he has derived no advantage;
for in taking the trust he did not receive a favour, but conferred
one. In a pawn, the same as in a thing let out for hire, a middle way
of deciding the obligation may be pursued, so that the person taking
it is not answerable, like a borrower, for every accident, and yet he
is obliged to use greater care, than a bare depositary, in keeping
it safe. For though taking a pledge is a gratuitous acceptance, it
is followed by some of the conditions of a contract. All these cases
are conformable to the Roman law, though not originally derived from
thence, but from natural equity. Rules, all of which may be found among
other nations. And, among other works, we may refer to the third book
and forty-second chapter of the GUIDE FOR DOUBTFUL CASES, written by
Moses Maimonides, a Jewish writer.
Upon the same principles the nature of all other contracts may be
explained; but the leading features in those of certain descriptions
seemed sufficient for a treatise like the present.
XIV. The general demand for any thing, as Aristotle has clearly
proved, constitutes the true measure of its value, which may be seen
particularly from the practice prevailing among barbarous nations of
exchanging one thing for another. But this is not the only standard:
for the humours and caprice of mankind, which dictate and controul all
regulations, give a nominal value to many superfluities. It was luxury,
says Pliny, that first discovered the value of pearls, and Cicero has
somewhere observed, that the worth of such things can only be estimated
by the desires of men.
But on the other hand, it happens that the plentiful supply of
necessaries lowers their price. This Seneca, in the 15th chapter of his
sixth book on benefits, proves by many instances, which he concludes
with the following observation, "the price of every thing must be
regulated by the market, and notwithstanding all your praises, it is
worth nothing more than it can be sold for." To which we may add the
authority of Paulus the Lawyer, who says, the prices of things do not
depend upon the humours and interest of individuals, but upon common
estimation, that is, as he explains himself elsewhere, according to the
worth which they are of to all.
Hence it is that things are valued in proportion to what is usually
offered or given for them, a rule admitting of great variation and
latitude, except in certain cases, where the law has fixed a standard
price. In the common price of articles, the labour and expence of the
merchant in procuring them is taken into the account, and the sudden
changes so frequent in all markets depend upon the number of buyers,
whether it be great or small, and upon the money and marketable
commodities, whether they be plentiful or scarce.
There may indeed be casualties, owing to which a thing may be lawfully
bought or sold above or below the market price. Thus for instance, a
thing by being damaged may have lost its original or common value, or
that, which otherwise would not have been disposed of, may be bought or
sold from some particular liking or aversion. All these circumstances
ought to be made known to the contracting parties. Regard too should be
had to the loss or gain arising from delay or promptness of payment.
XV. In buying and selling we must observe, that the bargain is
completed from the very moment of the contract, even without delivery,
and that is the most simple way of dealing. Thus Seneca says, that a
sale is a transfer of one's right and property in a thing to another,
which is done in all exchanges. But if it be settled that the property
shall not be transferred immediately, still the seller will be bound to
convey it at the stated period, taking in the mean time all the profits
and losses.
Whereas the completion of bargain and sale, by giving the purchaser
a right of possession and ejectment, and conveying to him the hazard
with all the profits of the property, even before it is transferred,
are regulations of the civil law not universally observed. Indeed
some legislators have made the seller answerable for all accidents
and damages, till the actual delivery of possession is made, as
Theophrastus has observed in a passage in Stobaeus, under the title
of laws, where the reader will find many customs, relating to the
formalities of sale, to earnest, to repentance of a bargain, very
different from the rules of the Roman law. And among the Rhodians, Dion
Prusaeensis informs us that all sales and contracts were confirmed by
being entered in a public register.
We must observe too that, if a thing has been twice sold, of the two
sales the one is valid, where an immediate transfer of the property has
been made, either by delivery of possession, or in any other mode. For
by this means the seller gives up an absolute right, which could not
pass by a promise alone.
XVI. It is not every kind of monopoly that amounts to a direct
violation of the laws of nature. The Sovereign power may have very just
reasons for granting monopolies, and that too at a settled price: a
noble instance of which we find in the history of Joseph, who governed
Egypt under the auspices of Pharaoh.[30] So also under the Roman
government the people of Alexandria, as we are informed by Strabo,
enjoyed the monopoly of all Indian and Ethiopian goods.
A monopoly also may, in some cases, be established by individuals,
provided they sell at a reasonable rate. But all combinations to raise
the necessary articles of life to an exorbitant rate, or all violent
and fraudulent attempts to prevent the market from being supplied,
or to buy up certain commodities, in order to enhance the price, are
public injuries and punishable as such.[31] Or indeed ANY WAY of
preventing the importation of goods, or buying them up in order to
sell them at a greater rate than usual, though the price, UNDER SOME
PARTICULAR CIRCUMSTANCES, may not seem unreasonable, is fully shewn by
Ambrose in his third book of Offices to be a breach of charity; though
it come not directly under the prohibition of laws.
XVII. As to money, it may be observed that its uses do not result
from any value intrinsically belonging to the precious metals, or to
the specific denomination and shape of coin, but from the general
application which can be made of it, as a standard of payment for all
commodities. For whatever is taken as a common measure of all other
things, ought to be liable, in itself, to but little variation. Now the
precious metals are of this description, possessing nearly the same
intrinsic value at all times and in all places. Though the nominal
value of the same quantity of gold and silver, whether paid by weight
or coin will be greater or less, in proportion to the abundance or
scarcity of the things for which there is a general demand.
XVIII. Letting and hiring, as Caius has justly said, come nearest to
selling and buying, and are regulated by the same principles. For the
price corresponds to the rent or hire, and the property of a thing to
the liberty of using it. Wherefore as an owner must bear the loss of
a thing that perishes, so a person hiring a thing or renting a farm
must bear the loss of all ordinary accidents, as for instance, those
of barrenness or any other cause, which may diminish his profits.[32]
Nor will the owner, on that account, be the less entitled to the
stipulated price or rent, because he gave the other the right of
enjoyment, which at that time was worth so much, unless it was then
agreed that the value should depend upon such contingencies.
If an owner, when the first tenant has been prevented from using a
thing, shall have let it to another, all the profits accruing from it
are due to the first tenant, for it would not be equitable that the
owner should be made richer by what belonged to another.
XIX. The next topic, that comes under consideration, is the lawfulness
of taking interest for the use of a consumable thing; the arguments
brought against which appear by no means such as to command our assent.
For as to what is said of the loan of consumable property being a
gratuitous act, and entitled to no return, the same reasoning may
apply to the letting of inconsumable property for hire, requiring a
recompence for the use of which is never deemed unlawful, though it
gives the contract itself a different denomination.
Nor is there any more weight in the objection to taking interest for
the use of money, which in its own nature is barren and unproductive.
For the same may be said of houses and other things, which are
unproductive and unprofitable without the industry of man.[33]
There is something more specious in the argument, which maintains,
that, as one thing is here given in return for another, and the use and
profits of a thing cannot be distinguished from the thing itself, when
the very use of it depends upon its consumption, nothing more ought to
be required in return for the use, than what is barely equivalent to
the thing itself.
But it is necessary to remark, that when it is said the enjoyment of
the profits of consumable things, whose property is transferred, in
the use, to the borrower or trustee, was introduced by an act of the
senate, this does not properly come under the notion of Usufruct, which
certainly in its original signification answers to no such right.
Yet it does not follow that such a right is of no value, but on the
contrary money may be required for surrendering it to the proprietor.
Thus also the right of not paying money or wine borrowed till after a
certain time is a thing whose value may be ascertained, the delay being
considered as some advantage. Therefore in a mortgage the profits of
the land answer the use of money. But what Cato, Cicero, Plutarch and
others allege against usury, applies not so much to the nature of the
thing, as to the accidental circumstances and consequences with which
it is commonly attended.[34]
XX. There are some kinds of interest, which are thought to wear the
appearance of usury, and generally come under that denomination,
but which in reality are contracts of a different nature. The five
shillings commission which a banker, for instance, charges upon
every hundred pounds, is not so much an interest in addition to five
per cent, as a compensation for his trouble, and for the risk and
inconvenience he incurs, by the loan of his money, which he might have
employed in some other lucrative way. In the same manner a person who
lends money to many individuals, and, for that purpose, keeps certain
sums of cash in his hands, ought to have some indemnity for the
continual loss of interest upon those sums, which may be considered
as so much dead stock. Nor can any recompence of this kind be branded
with the name of usury. Demosthenes, in his speech against Pantaenetus,
condemns it as an odious act of injustice, to charge with usury a man,
who in order to keep his principal undiminished, or to assist another
with money, lends out the savings of his industry and frugal habits,
upon a moderate interest.
XXI. Those human laws, which allow a compensation to be made for the
use of money or any other thing, are neither repugnant to natural nor
revealed law. Thus in Holland, where the rate of interest upon common
loans was eight per cent, there was no injustice in requiring twelve
per cent of merchants; because the hazard was greater. The justice and
reasonableness indeed of all these regulations must be measured by the
hazard or inconvenience of lending. For where the recompence exceeds
this, it becomes an act of extortion or oppression.
XXII. Contracts for guarding against danger, which are called
insurances, will be deemed fraudulent and void, if the insurer knows
beforehand that the thing insured is already safe, or has reached its
place of destination, and the other party that it is already destroyed
or lost. And that not so much on account of the equality naturally
requisite in all contracts of exchange, as because the danger and
uncertainty is the very essence of such contract. Now the premium upon
all insurances must be regulated by common estimation.[35]
XXIII. In trading partnerships, where money is contributed by both
parties; if the proportions be equal, the profits and the losses ought
to be equal also. But if they be unequal, the profits and the losses
must bear the same proportion, as Aristotle has shewn at the conclusion
of the eighth book of his Ethics. And the same rule will hold good
where equal or unequal proportions of labor are contributed. Labor
may be given as a balance against money, or both labor and money may
be given, according to the general maxim that one man's labour is an
equivalent for another man's money.
But there are various ways of forming these agreements. If a man
borrows money to employ his skill upon in trading for himself, whether
he gains or loses the whole, he is answerable to the owner for the
principal. But where a man unites his labor to the capital of another
in partnership, there he becomes a partner in the principal, to a share
of which he is entitled. In the first of these cases the principal is
not compared as a balance against the labor, but it is lent upon terms
proportioned to the risk of losing it, or the probable gains to be
derived from it. In the other case, the price of labour is weighed, as
it were, against the money, and the party who bestows it, is entitled
to an equivalent share in the capital.
What has been said of labour may be applied to voyages, and all
other hazardous undertakings. For it is contrary to the very nature
of partnerships for any one to share in the gain, and to be exempt
from the losses. Yet it may be so settled without any degree of
injustice. For there may be a mixed contract arising out of a contract
of insurance in which due equality may be preserved, by allowing the
person, who has taken upon himself the losses, to receive a greater
share of the gain than he would otherwise have done. But it is a thing
quite inadmissible that any one should be responsible for the losses
without partaking of the gains; for a communion of interests is so
natural to society that it cannot subsist without it.
What has been said by writers on the civil law, that the shares are
understood to be equal where they are not expressly named, is true
where equal quotas have been contributed. But in a GENERAL partnership
the shares are not to be measured by what may arise from this or that
article, but from the probable profits of the whole.
XXIV. In naval associations the common motive of utility is
self-defence against pirates: though they may sometimes be formed from
less worthy motives. In computing the losses to be sustained by each,
it is usual to estimate the number of men, the number of ships, and the
quantity of merchandise protected. And what has hitherto been said will
be found conformable to natural justice.
XXV. Nor does the voluntary[36] law of nations appear to make any
alteration here. However, there is one exception, which is, that where
equal terms have been agreed upon, if no fraud has been used, nor any
necessary information withheld, they shall be considered as equal in
an external[37] point of view. So that no action can be maintained
in a court for such inequality. Which was the case in the civil law
before Dioclesian's constitution. So among those, who are bound by the
law of nations alone, there can be no redress or constraint on such
account.[38]
And this is the meaning of what Pomponius says, that in a bargain and
sale, one man may NATURALLY overreach another: an allowance which is
not to be construed, as a right, but is only so far a permission, that
no legal remedy can be used against the person, who is determined to
insist upon the agreement.
In this place, as in many others, the word natural signifies nothing
more than what is received by general custom. In this sense the Apostle
Paul has said, that it is naturally disgraceful for a man to wear long
hair; a thing, in which there is nothing repugnant to nature, but which
is the general practice among some nations. Indeed many writers, both
sacred and profane, give the name of NATURAL to what is only CUSTOMARY
and HABITUAL.
CHAPTER XIII.
ON OATHS.
Efficacy of oaths among Pagans--Deliberation requisite in
oaths--The sense, in which oaths are understood to be taken, to
be adhered to--To be taken according to the usual meaning of the
words--The subject of them to be lawful--Not to counteract moral
obligations--In what sense oaths are an appeal to God--The purport
of oaths--To be faithfully observed in all cases--The controul
of sovereigns over the oaths of subjects--Observations on our
Saviour's prohibition of oaths--Forms substituted for oaths.
I. The sanctity of an oath with regard to promises, agreements, and
contracts, has always been held in the greatest esteem, in every age
and among every people. For as Sophocles has said in his Hippodamia,
"The soul is bound to greater caution by the addition of an oath. For
it guards us against two things, most to be avoided, the reproach of
friends, and the wrath of heaven." In addition to which the authority
of Cicero may be quoted, who says, our forefathers intended that an
oath should be the best security for sincerity of affirmation, and the
observance of good faith. "For, _as he observes in another place_,
there can be no stronger tie, to the fulfilment of our word and
promise, than an oath, which is a solemn appeal to the testimony of
God."
II. The next point, to be considered, is the original force and extent
of oaths.
And in the first place the arguments, that have been used respecting
promises and contracts, apply to oaths also, which ought never to be
taken but with the most deliberate reflection and judgment. Nor can any
one lawfully take an oath, with a secret intention of not being bound
by it. For the obligation is an inseparable and necessary consequence
of an oath, and every act accompanied with an obligation is supposed to
proceed from a deliberate purpose of mind. Every one is bound likewise
to adhere to an oath in that sense, in which it is usually understood
to be taken. For an oath being an appeal to God, should declare the
full truth in the sense in which it is understood. And this is the
sense upon which Cicero insists that all oaths should be performed and
adhered to in that sense, in which the party imposing them intended
they should be taken. For although in other kinds of promises a
condition may easily be implied, to release the promiser; yet that is a
latitude by no means admissible in an oath. And on this point an appeal
may be made to that passage, where the admirable writer of the Epistle
to the Hebrews has said, GOD WILLING more abundantly to shew unto the
heirs of the promise the immutability of his counsel confirmed it by an
oath: that by two immutable things, in which it was impossible for God
to deceive, we might have a strong consolation. In order to understand
these words, we must observe that the sacred writers, in speaking of
God, often attribute to him human passions, rather in conformity to
our finite capacities, than to his infinite nature. For God does not
actually change his decrees, though he may be said to do so, and to
repent, whenever he acts otherwise than the words seemed to indicate,
the occasion, on which they were delivered, having ceased. Now this
may easily be applied in the case of threats, as conferring no right;
sometimes too in promises, where a condition is implied. The Apostle
therefore names two things denoting immutability, a promise which
confers a right, and an oath, which admits of no mental reservations.
From the above arguments it is easy to comprehend what is to be thought
of an oath fraudulently obtained. For if it is certain that a person
took the oath upon a supposition, which afterwards was proved to have
no foundation, and but for the belief of which he would never have
taken it, he will not be bound by it. But if it appears that he would
have taken it without that supposition; he must abide by his oath,
because oaths allow of no evasion.
III. The meaning of an oath should not be stretched beyond the usual
acceptation of words. Therefore there was no breach of their oath in
those, who, having sworn that they would not give their daughters in
marriage to the Benjamites, permitted those that had been carried off
to live with them. For there is a difference between giving a thing,
and not recovering that which is lost.
IV. To give validity to an oath, the obligation, which it imposes ought
to be lawful. Therefore a sworn promise, to commit an illegal act, to
do any thing in violation of natural or revealed law, will be of no
effect.
V. Indeed if a thing promised upon oath be not actually illegal, but
only an obstruction to some greater moral duty, in that case also the
oath will not be valid. Because it is a duty which we owe to God not to
deprive ourselves of the freedom of doing all the good in our power.
VI. Oaths may differ in form, and yet agree in substance. For they all
ought to include an appeal to God, calling upon him to witness the
truth, or to punish the falsehood of their assertions, both of which
amount to the same thing. For an appeal to the testimony of a superior,
who has a right to punish, is the same as requiring him to avenge an
act of perfidy. Now the omniscience of God gives him power to punish,
as well as to witness every degree of falsehood.
VII. It was a custom with the ancients to swear by persons or beings
expressly distinct from the supreme creator, either imprecating the
wrath of those by whom they swore, whether it were the sun, the
heavens, or the earth; or swearing by their own heads, by their
children, their country or their prince, and calling for destruction
upon THEM, if there were any falsehood in their oaths.
Nor was this practice confined to Heathen nations only, but, as we
are informed by Philo, it prevailed among the Jews. For he says that
we ought not, in taking an oath upon every occasion, to have recourse
to the maker and father of the universe, but to swear by our parents,
by the heavens, the earth, the universe. Thus Joseph is said to have
sworn by the life of Pharaoh, according to the received custom of the
Egyptians. Nor does our Saviour, in the fifth chapter of St. Matthew's
Gospel, intend, as it is supposed by some, to consider these oaths to
be less binding than those taken expressly by the name of God. But
as the Jews were too much inclined to make use of, and yet disregard
them, he shews them that they are real oaths. For, as Ulpian has well
observed, he who swears by his own life, seems to swear by God, bearing
a respect and reference to his divine power. In the same manner Christ
shews that he, who swears by the temple, swears by God who presides in
the temple, and that he who swears by Heaven, swears by God, who sits
upon the Heavens. But the Jewish teachers of that day thought that men
were not bound by oaths made in the name of created beings, unless
some penalty were annexed, as if the thing, by which they swore, were
consecrated to God. For this is the kind of oath implied in the word
κορβᾶν {korban} as BY A GIFT. And it is this error of theirs, which
Christ refutes.
VIII. The principal effect of oaths is to cut short disputes. "An oath
for confirmation, _as the inspired writer of the Epistle to the Hebrews
has said_, is the end of all strife." So too we find in Diodorus
Siculus, that an oath was regarded among the Egyptians as the surest
pledge of sincerity that men could give. So that every one, in taking
an oath, should express the real purpose of his mind, and render his
actions conformable to those expressions. There is a beautiful passage
on this subject, in Dionysius of Halicarnassus, who says, "the last
pledge among men, whether Greeks or Barbarians, and it is a pledge,
which no time can blot out, is that which takes the Gods, as witnesses
to oaths and covenants."
IX. The substance of an oath too should be such, and conceived in such
words, as to include not only the divine, but the human obligations,
which it implies. For it should convey to the person, who receives it,
the same security for his right, as he would derive from an express
promise or a contract. But if either the words bear no reference to a
person so as to confer upon him a right, or if they do refer to him but
in such a manner that some opposition may be made to his claim, the
force of the oath will, in that case, be such as to give that person no
right from it; yet he who has taken it must still submit to the divine
obligation, which the oath imposes. An example of which we have in a
person, from whom a sworn promise has been extorted by fear. For here
the oath conveys no right, but what the receiver ought to relinquish,
for it has been obtained to the prejudice of the giver. Thus we find
the Hebrew Kings were reproved by the prophets, and punished by God for
not observing the oaths, which they had taken to the kings of Babylon.
X. The same rule applies not only to transactions between public
enemies, but to those between any individuals whatsoever. For he, to
whom the oath is taken, is not the only person to be considered; but
a solemn regard must be paid to God, in whose name the oath is taken,
and who possesses authority to enforce the obligation. For which reason
it is impossible to admit the position of Cicero, that it is no breach
of an oath to refuse paying to robbers the sum stipulated for having
spared one's life; because such men are not to be ranked in the number
of lawful enemies, but treated as the common enemies of all mankind, so
that towards them no faith ought to be kept, nor even the sanctity of
an oath observed.
XI. The power of superiors over inferiors, that is of sovereigns over
subjects, with respect to oaths, is the next topic that comes under
consideration. Now the act of a superior cannot annul the perfect
obligation of an oath, which rests upon natural and revealed law. But
as we are not, in a state of civil society, entirely masters of our
own actions, which in some measure depend upon the direction of the
sovereign power, which has a twofold influence with respect to oaths,
in the one case applying to the person who takes, and in the other, to
the person who receives them. This authority may be exercised over the
person taking the oath, either by declaring, before it is taken, that
it shall be made void, or by prohibiting its fulfilment, when taken.
For the inferior or subject, considered as such, could not bind himself
to engagements, beyond those allowed by the sovereign legislature. In
the same manner, by the Hebrew Law, husbands might annul the oaths of
wives, and fathers those of children, who were still dependent.
XII. In this place we may cursorily observe, that what is said in the
precepts of Christ, and by St. James, against swearing at all, applies
not to an oath of affirmation, many instances of which are to be
found in the writings of St. Paul, but to promissory oaths respecting
uncertain and future events. This is plain from the opposition in the
words of Christ. "You have heard it hath been said by them of old time,
thou shalt not forswear thyself, but shalt perform unto the Lord thine
oath. But I say to you, swear not at all." And the reason given for
it by St. James, is that "you fall not into hypocrisy," or be found
deceivers; for so the word HYPOCRISY signifies in the Greek.
Again it is said by St. Paul, that all the promises of God in Christ
are YEA and AMEN, that is are certain and undoubted. Hence came the
Hebrew phrase, that a just man's YEA is YEA, and his NO is NO. On the
other hand, persons, whose actions differ from their affirmations,
are said to speak YEA and NO, that is their affirmation is a denial,
and their denial an affirmation. In this manner St. Paul vindicates
himself from the charge of lightness of speech, adding that his
conversation had not been YEA, and NO.
XIII. Affirmations are not the only modes of obligation. For in many
places signs have been used as pledges of faith; thus among the
Persians giving the right hand was considered the firmest tie. So that
where any form is substituted for an oath, the violation of it will be
an act of perjury. It has been said of Kings and Princes in particular,
that their faith is the same as an oath. On which account Cicero, in
his speech for Dejotarus, commends Caesar no less for the vigour of his
arm in battle, than for the sure fulfilment of the pledge and promise
of his right hand.
CHAPTER XV.[39]
ON TREATIES AND ON ENGAGEMENTS MADE BY DELEGATES, EXCEEDING THEIR POWER.
Public Conventions--Divided into treaties, engagements, and other
compacts--Difference between treaties and the engagements made
by delegates exceeding their powers--Treaties founded on the
law of nature--Their origin--Treaties founded on still more
extensive principles--Treaties with those, who are strangers to
the true religion, prohibited neither by the Jewish nor Christian
law--Cautions respecting such treaties--Christians bound to unite
against the enemies of the Christian religion--Among a number
of Allies in war, which of them have the first pretensions to
assistance--Tacit renewal of treaties--The effect of perfidy in one
of the contracting parties considered--How far the unauthorized
engagements of delegates are binding, when the sovereigns refuse
to ratify them--The Caudian Convention considered--Whether the
knowledge and silence of the Sovereign makes those unauthorized
conventions binding--The Convention of Luctatius considered.
I. Ulpian has divided conventions into two kinds, public and private,
and he has not explained a public convention upon the usual principles,
but has confined it to a treaty of peace, which he alleges as his
first example, and he has made use of the engagements entered into
by the generals of two contending powers, as an instance of private
conventions. By public conventions therefore he means those, which
cannot be made but by the authority and in the name of the sovereign
power, thus distinguishing them not only from the private contracts
of individuals, but ALSO from the PERSONAL contracts of sovereigns
themselves. And indeed private injuries and contracts, no less than
public treaties frequently prove the origin of wars. And as private
contracts have been already so amply discussed, the higher order
of contracts, which come under the denomination of treaties, will
necessarily form the leading part in our farther inquiries.
II. and III. Now public conventions may be divided into treaties,
engagements, and other compacts.
The ninth book of Livy may be consulted on the distinction between
treaties and engagements, where the historian informs us, that treaties
are those contracts, which are made by the express authority of the
sovereign power, and in which the people invoke the divine vengeance
on their heads, if they violate their engagements. Among the Romans
the persons employed in declaring war and making peace, were in
the conclusion of these solemn treaties, always accompanied by the
principal herald, who took the oath in the name of the whole people.
A _sponsio_, or ENGAGEMENT, is what was made by persons, who had no
express commission for that purpose from the sovereign power, and whose
acts consequently required a further ratification from the sovereign
himself.[40]
The Senate of Rome, we are informed by Sallust, judged very properly in
passing a decree, that no treaty could be made without their consent
and that of the people. Livy relates that Hieronymus, king of Syracuse,
having entered into a convention with Hannibal, sent afterwards to
Carthage to have it converted by the state into a league. For which
reason Seneca the elder has said, applying the expression to persons
invested with a special commission for that purpose, that a treaty,
negotiated by the general, binds the whole of the Roman people, who are
supposed to have made it.
But in monarchies, the power of making treaties belongs to the king
alone, a maxim which the language of poetry, no less than the records
of history, shews to have been held in all ages. Euripides, whose
sentiments are always conformable to nature, and popular opinion, in
his Tragedy of the Suppliants, says, "It rests with Adrastus to take
the oath, to whom, as sovereign, the sole right of binding the country
by treaties belongs."
No subordinate magistrates have such a power of binding the people; nor
will the acts of a smaller portion bind the greater, an argument used
in favour of the Romans against the Gauls. For there was a majority of
the people with Camillus, the dictator.
But it remains to be considered how far the acts of those, who have
engaged for the people, without any public authority, are binding.
Perhaps it may be said that the contracting parties have discharged
their responsibility when they have done all in their power towards the
fulfilment of their obligation. That might be the case in promises, but
the obligation in public contracts is of a stricter kind. For the party
contracting requires something in return for the engagements he makes.
Hence the civil law, which rejects all promises made by one person for
the performance of some act by another, renders him who engages for the
ratification of a thing liable to pay damages and interest.
IV. The most accurate distinction in treaties, is that which makes the
foundation of some rest purely upon the law of nature, and others upon
the obligations, which men have either derived from the law of nature,
or added to it. Treaties of the former kind are, in general, made, not
only between enemies, as a termination of war; but in ancient times
were frequently made, and, in some degree, thought necessary among men
in the formation of every contract. This arose from that principle in
the law of nature, which established a degree of kindred among mankind.
Therefore it was unlawful for one man to be injured by another. And
this natural justice universally prevailed before the deluge. But after
that event, in process of time, as evil dispositions and habits gained
ground, it was by degrees obliterated. So that one people's robbing and
plundering another, even when no war had been commenced or declared,
was deemed lawful. Epiphanius calls this the Scythian fashion. Nothing
is more frequent in the writings of Homer than for men to be asked, if
they are robbers? A question, as Thucydides informs us, by no means
intending to convey reproach, but purely for information. In an ancient
law of Solon's mention is made of companies formed for robbery: and, we
find from Justin, that, till the times of Tarquin, piracy was attended
with a degree of glory.
In the law of the Romans it was a maxim, that nations, which had not
entered into terms of amity, or into treaties with them were not to
be considered as enemies. But if any thing belonging to the Romans
fell into their hands, it became theirs; or any citizen of Rome,
taken by them, became a slave; and the Romans would treat any person
belonging to that nation, in the same manner. In this case the right
of postliminium[41] is observed. So at a remote period, before the
times of the Peloponnesian war, the Corcyraeans were not considered
as enemies by the Athenians, though there was no treaty of peace
subsisting between them, as appears from the speech of the Corinthians
given by Thucydides. Aristotle commends the practice of plundering
barbarians, and in ancient Latium an enemy signified nothing but a
foreigner.
In the class of treaties referred to in this section may be ranked
those made between different states for the mutual preservation of the
rights of hospitality and commerce, as far as they come under the law
of nature. Arco makes use of this distinction, in his speech to the
Achaeans, as reported by Livy, where he says he does not require an
offensive and defensive alliance, but only such a treaty as may secure
their rights from infringement by each other, or prevent them from
harbouring the fugitive slaves of the Macedonians. Conventions of this
kind were called by the Greeks, strictly speaking, PEACE in opposition
to TREATIES.
V. Treaties founded upon obligations added to those of the law of
nature are either equal, or unequal. Equal treaties are those, by
which equal advantages are secured on both sides. The Greeks call them
ALLIANCES, and sometimes alliances upon an equal scale. But treaties
of the latter kind are more properly leagues than treaties, and where
one of the parties is inferior in dignity, they are called INJUNCTIONS,
or INJUNCTIONS ANNEXED TO COVENANTS. Demosthenes in his speech on
the liberty of the Rhodians says, all nations ought to guard against
forming such leagues, as approaching too near to servitude.
Treaties of both kinds, whether of peace or alliance are made from
motives of some advantage to the parties. By equal treaties of peace,
the restoration of prisoners, the restoration or cession of conquered
places, and other matters providing for its due maintenance, are
settled, a subject that will be more fully treated of hereafter, in
stating the effects and consequences of war. Treaties of alliance upon
equal conditions relate either to commerce, or to contributions for the
joint prosecution of a war, or to other objects of equal importance.
Equal treaties of commerce may vary in their terms. For instance it
may be settled that no duties shall be imposed upon the goods of the
subjects, belonging to each of the contracting powers: or that the
duties upon their respective commodities shall be lower than the duties
upon those of any other nation. The first of these examples may be
found in an ancient treaty between the Romans and Carthaginians, in
which there is a clause, making an exception of what is given to the
notary and public crier. Or it may be settled that no higher duties
than those existing at the time the treaty is made shall be imposed, or
that they shall not be augmented beyond a certain rate.
So in alliances of war the contracting parties are required to
furnish equal numbers of troops or ships, a kind of alliance which,
as Thucydides explains it, calls upon the united powers to hold the
same states for common enemies or friends: we find, in many parts
of Livy, alliances of this description among states, for the mutual
defence of their territories or for the prosecution of some particular
war, or against some particular enemy, or against all states excepting
their respective allies. Polybius has given a treaty of this kind,
made between the Carthaginians and Macedonians. In the same manner
the Rhodians bound themselves by treaty to assist Atigonus Demetrius
against all enemies except Ptolemy. There are other objects too for
which equal treaties are made. Thus one power may bind another to build
no forts in their neighbourhood which might prove an annoyance, to give
no encouragement to rebellious subjects, to allow the troops of an
enemy no passage through their country.
VI. From equal treaties, the nature of unequal treaties may easily
be understood. And where two powers contract, this inequality may
be on the side either of the superior, or of the inferior power.
A superior power may be said to make an unequal treaty, when it
promises assistance without stipulating for any return, or gives
greater advantages than it engages to receive. And on the part of the
inferior power this inequality subsists when, as Isocrates says in his
PANEGYRIC, her privileges are unduly depressed; so that engagements of
this kind may be called injunctions or commands rather than treaties.
And these may, or may not, be attended with a diminution of their
sovereign power.
Such a diminution of sovereign power followed the second treaty between
the Carthaginians and Romans, by which the former were bound to make
no war but with the consent of the Roman people; so that from that
time, Appian says, the Carthaginians were compelled by treaty to comply
with the humour of the Romans. To this kind may be added a conditional
surrender, except that it leads not to a DIMINUTION, but to an ENTIRE
TRANSFER of the sovereign dignity and power.
VII. The burdens attached to unequal treaties, where no diminution of
sovereignty takes place, may be either transitory or permanent.
TRANSITORY burdens are those, by which the payment of certain sums of
money is imposed, the demolition of certain works and fortifications,
the cession of certain countries and the delivery of ships or hostages
are required. But PERMANENT conditions are those, which require the
tribute of homage and submission from one power to another.
Nearly approaching to such treaties are those, by which one power is
debarred from having any friends or enemies, but at the pleasure of
another, or from allowing a passage and supplies to the troops of any
state, with whom that power may be at war. Besides these there may be
conditions of an inferior and less important kind; such as those, which
prohibit the building of forts in certain places; maintaining armies,
or having ships beyond a certain number; navigating certain seas, or
raising troops in certain countries; attacking allies or supplying
enemies. Some conditions indeed go so far as to prohibit a state from
admitting refugees, and to demand annulling all former engagements with
every other power. Numerous examples of such treaties are to be found
in historians both ancient and modern.
Unequal treaties may be made not only between the conquerors and the
conquered but also between mighty and impotent states, between whom no
hostilities have ever existed.
VIII. In considering treaties, it is frequently asked, whether it be
lawful to make them with nations, who are strangers to the Christian
religion; a question, which, according to the law of nature, admits not
of a doubt. For the rights, which it establishes, are common to all men
without distinction of religion.
The gospel has made no change in this respect, but rather favours
treaties, by which assistance in a just cause may be afforded even to
those, who are strangers to religion. For to embrace opportunities of
doing good to all men is not only permitted as laudable, but enjoined
as a precept. For in imitation of God, who makes his sun to rise upon
the righteous and the wicked, and refreshes them both with his gracious
rain, we are commanded to exclude no race of men from their due share
of our services. Yet, in equal cases, it admits of no doubt, that those
within the pale of our own religious communion have a preferable claim
to our support.
IX. In addition to the foregoing arguments we may observe that as all
Christians are considered as members of one body, which are required to
feel for the pains and sufferings of each other, this precept applies
not only to individuals, but to nations and kings in their public
capacity. For the rule of duty is not to be measured by the inclination
of individuals, but by the injunctions of Christ. And in some cases
the ravages of an impious enemy can only be opposed by a firm alliance
among Christian kings, and governments. And it is a duty from which
nothing, but inevitable necessity, and their immediate attention being
engrossed by the prosecution of other wars, can excuse them.
X. Another question frequently arises, which is, when two states are
engaged in war with each other, to which of them a power, equally
allied to both, ought in preference to give assistance. Here too we
must observe there can be no obligation to support unjust wars. On
which account that confederate power, which has justice on its side,
will have a claim to preference, if engaged in war with another not
comprehended in the number of confederates, or even if engaged with one
of the confederates themselves.
But if two powers engage in a war, equally unjust on both sides, a
third power, united in confederacy with both, will prudently abstain
from interference. Again, if two powers allied to us are engaged in
a just war against others, with whom we have no connection; in the
supplies of men or money that we furnish to either we ought to follow
the rule, observed in the case of personal creditors.[42]
But if personal assistance, which cannot be divided, is required of the
contracting party, in that case the preference must be given to the
engagements of the longest standing. However the case of a subsequent
treaty, which makes the engagements of a more binding and extensive
nature, will form an exception to this rule.
XI. The tacit renewal of a treaty ought not to be presumed upon at the
expiration of the period, limited for its continuance, unless certain
acts be performed, which can expressly be construed as a renewal of it,
and can be taken in no other sense.
XII. If one of the parties violates a treaty, such a violation releases
the other from its engagements. For every clause has the binding force
of a condition. And as an example of this, a passage from Thucydides
may be quoted, where that historian says that "for one power to accede
to a new confederacy, and to desert an ally who has neglected to
fulfil his engagements, is no breach of a treaty; but not to assist
another power in conformity to sworn engagements amounts to a violation
thereof." And this is generally true, except where it has been agreed
to the contrary, that a treaty shall not be null and relinquished for
trifling disgusts and miscarriages.
XIII. Conventions are as various and numerous as treaties, and the
distinction made between them is owing more to the difference of power
in those by whom they are made, than to any real difference in their
own nature. But there are two particular points of inquiry materially
connected with all conventions, the first of which relates to the
extent of the negotiator's obligation, when the sovereign or the
state refuses to ratify a convention, whether he is bound to make an
indemnity to the other party for the disappointment, to restore things
to the situation they were in before he treated, or to deliver up his
own person. The first opinion seems conformable to the Roman civil law,
the second to equity as it was urged by the tribunes of the people, L.
Livius, and J. Melius, in the dispute about the peace of Caudium;[43]
but the third is that most generally adopted, as was done respecting
the two famous conventions of Caudium and Numantia. But there is one
caution particularly to be observed, and that is, that the sovereign is
no way bound by such unauthorised conventions, until he has ratified
them. In the convention alluded to, if the Samnites had intended to
bind the Roman people, they should have retained the army at Caudium,
and sent ambassadors to the senate and people at Rome, to discuss the
treaty, and learn upon what terms they chose to redeem their army.
XIV. Another question is, whether the knowledge and silence of the
sovereign bind him to the observance of a convention. But here it is
necessary to make a distinction between an absolute convention, and
one made upon condition of its being ratified by the sovereign. For as
all conditions ought to be literally fulfilled, such a condition, on
failure of fulfilment, becomes void.
This principle was very properly observed in the convention made
between Luctatius and the Carthaginians; to which the people refused
to accede, as it had been made without their consent.[44] A new treaty
therefore was made by public authority.
The next thing to be considered is, whether there may not be some act
of consent besides silence. For without some visible act, silence is
not of itself sufficient to warrant a probable conjecture of intention.
But if certain acts are done which can be accounted for upon no other
grounds than those of consent, they are supposed to ratify a treaty.
Thus if the convention of Luctatius had contained many clauses, some of
them relinquishing certain rights, and those clauses had been always
duly observed by the Romans, such observance would be justly taken for
a ratification of the treaty.
CHAPTER XVI.
THE INTERPRETATION OF TREATIES.
The external obligation of promises--Words where other conjectures
are wanting to be taken in their popular meaning--Terms of art
to be interpreted according to the acceptation of the learned in
each art, trade, and science--Conjectures requisite to explain
ambiguous or seemingly contradictory terms--Interpretation
of treaties from the subject-matter--From consequences, from
circumstances and connection--Conjectures taken from motives--The
more strict or more extensive interpretation--Treaties favourable,
odious, mixed or indifferent--The good faith of kings and nations
in treaties of equal validity with law--Rules of interpretation
formed from the above named distinctions--Whether the word
allies, in a treaty, is limited to those, who were such at the
time of making it, or applies to all who are, or hereafter may
become such--Interpretation of the prohibition of one party's
making war without the consent or injunction of the other--Of the
freedom granted to Carthage--Distinction between personal and
real treaties--A treaty made with a king continues even during
his expulsion by an usurper, such a treaty extends not to an
invader--What kind of promises ought to have the preference--The
extent of obvious conjectures--The performance of a commission
by doing something equivalent--Interpretation restricted more
closely than the bare signification of the words implies--From
an original defect of intention--From failure of the sole
motive--From a defect in the subject--Observations on the last
named conjectures--Emergencies repugnant to the original intention,
by rendering it unlawful or burdensome--Conjectures taken from
a comparison of one part of the writings with another--Rules to
be observed--In dubious cases, writings not absolutely requisite
to the validity of a contract--Contracts of Sovereigns not
to be interpreted by the Roman law--Whether the words of the
person accepting or offering the engagement ought to be most
regarded--This explained by a distinction.
I. If we consider the promiser alone, he is naturally bound to fulfil
his engagements. Good faith, observes Cicero, requires that a man
should consider as well what he intends, as what he says. But as acts
of the mind are not, of themselves visible, it is necessary to fix upon
some determinate mark, to prevent men from breaking their engagements,
by allowing them to affix their own interpretation to their words.
It is a right, which natural reason dictates, that every one who
receives a promise, should have power to compel the promiser to do
what a fair interpretation of his words suggests. For otherwise it
would be impossible for moral obligations to be brought to any certain
conclusion. Perhaps it was in this sense that Isocrates, treating of
agreements, in his prescription against Callimachus, maintains that
the laws enacted on this subject are the common laws of all mankind,
not only Greeks, but barbarians also. It is for this very reason, that
specific forms have been assigned for treaties, which are to be drawn
up in terms of unequivocal and certain meaning. The proper rule of
interpretation is to gather the intention of the parties pledged, from
the most probable signs. And these are of two kinds, namely, words and
conjectures, which may be considered either separately, or together.
II. Where we have no other conjecture to guide us, words are not to be
strictly taken in their original or grammatical sense, but in their
common acceptation, for it is the arbitrary will of custom, which
directs the laws and rules of speech.[45] It was a foolish act of
perfidy therefore in the Locrians, when they promised they would adhere
to their engagements as long as they stood upon that soil, and bore
those heads upon their shoulders, in order to evade their promise to
cast away the mould, which they had previously put within their shoes,
and the heads of garlick, which they had laid upon their shoulders.
Acts of treachery like these, Cicero, in the third book of his Offices,
has properly observed, instead of mitigating, tend to aggravate the
guilt of perjury.
III. In terms of art which are above the comprehension of the general
bulk of mankind, recourse, for explanation, must be had to those, who
are most experienced in that art; thus from consulting legal writers,
we may conceive the nature of particular crimes, or from the pages of
the same authors, derive our notions of sovereign power.
It is a just remark of Cicero's, that the language of logic is not
that of daily and familiar intercourse: the writers of that class have
phrases peculiar to themselves: which indeed is the case with arts
of every description. So in treaties, where military arrangements
occur, an army is defined to be a number of soldiers capable of OPENLY
invading a foreign, or an enemy's country. For historians everywhere
make a distinction between the private incursions of robbers, and
what is done by a lawful and regular army. What constitutes an army
must be therefore judged of by the enemy's force. Cicero defines an
army to consist of six legions and auxiliaries. Polybius says, that a
Roman army in general amounted to sixteen thousand Romans, and twenty
thousand auxiliaries. But a military force might be composed of a less
number of troops than this. In the same manner the number of ships
sufficient for any purpose will amount to a fleet, and a place able to
hold out against an enemy may be called a fort.
IV. It is necessary to make use of conjecture, where words or sentences
admit of many meanings: A mode of expression when included in one word,
is called by Logicians, a synonymous term, and, when extending to two
or more words, a doubtful phrase. In the same manner it is necessary
to have recourse to conjecture whenever a seeming contradiction occurs
in the expressions of a treaty. For in that case we must try to
discover such conjectures, as will reconcile, if possible, one part
with another. For if there be an evident contradiction, the contracting
parties by their latter determinations, must have intended to abrogate
their former; as no one can design to make contradictory resolutions
at the same time. Indeed all acts depending upon the human will, as
in the case of laws and testaments, which depend upon the will of one
party, and in contracts and treaties, which depend upon that of two or
more, all these acts are liable to changes, with a subsequent change
of will in the parties concerned. In all such cases any obscurity in
the language obliges us to have recourse to conjectures, which are
sometimes so obvious, as to point out a meaning directly contrary to
that of the words in their usual acceptation. Now the principal sources
of conjecture are to be found in the subject-matter, the consequences,
and the circumstances and connection.
V. From the subject or matter, as for instance, in the word day. Thus
if a truce be made for thirty days, here civil and not natural days are
meant.[46]
So the word donation is sometimes used to signify a transfer, according
to the nature of the business. In the same manner too the word
arms, which in general signifies military instruments, is sometimes
applied to troops, and may be taken in either sense, according to the
particular occasion. Every interpretation must be given according to
the intention understood. Thus the promise of a free passage given
upon the evacuation of a town, implies also that the troops shall pass
without molestation. If a number of ships are to be given up, perfect
and not mutilated ships are meant. And in all similar cases a similar
judgment must be formed according to the natural tenor of the words.
VI. Another source of interpretation is derived from the consequences,
especially where a clause taken in its literal meaning would lead to
consequences foreign or even repugnant to the intention of a treaty.
For in an ambiguous meaning such an acceptation must be taken as will
avoid leading to an absurdity or contradiction. The cavil of Brasidas
therefore is highly abominable, who, promising that he would evacuate
the Boeotian territory, said he did not consider that as Boeotian
territory, which he occupied with his army; as if the ancient bounds
were not intended, but only what remained unconquered, an evasion,
which entirely annulled the treaty.
VII. From the circumstances or context another source of interpretation
is derived. No inconsiderable light may be thrown upon the meaning
of an expression from the circumstance of its being used by the same
person to express the same intentions on other similar occasions, and
from its relation to what goes before, and what follows the place,
where it stands. For in all doubtful cases, we have reason to suppose
that the contracting parties mean to be consistent with their former
opinions and intentions. Thus in Homer, in the agreement between Paris
and Menelaus, that Helen should be given up to the conqueror, when
compared with what follows, it is evident that by the conqueror is
meant the combatant, who killed the other. This rule of interpretation,
Plutarch illustrates by the conduct of judges, "who passing by what is
obscure rest their decisions upon clear and unambiguous points."
VIII. As to the motives, which are sometimes taken for a rule of
interpretation, there may be other substantial ones, besides those
immediately expressed, for the passing of a law or the making of a
treaty. Yet the strongest conjecture is that which arises from certain
proof that the will was actuated by some reason, operating as a sole
and sufficient motive. For there are frequently MANY motives, and
sometimes the will is influenced by its own choice independent of any
other reason. In the same manner a grant made, in contemplation of a
marriage, will be void, if the marriage never takes place.
IX. It is further to be observed that many words have a variety of
acceptations, some more limited and others more extensive; which may
be owing either to the application of a general name to a particular
class of things, as in the words kindred and adoption; or to the use
of masculines to express animals both of the male and female kind,
where nouns of a common gender are wanting. In terms of art too, words
are often taken in a metaphorical or extended sense: thus in the civil
law death signifies banishment; but in its popular acceptation a
dissolution of the parts of the natural body.
X. In promises likewise, some things are of a favourable, some an
odious, and others of a mixed or indifferent description. Favourable
promises are those which contain an equality of terms, or which bear
some relation to the common good, the magnitude and extent of which
increases the favour of the promise: so that all engagements more
conducive to peace than to war are to be considered as those of a
favourable complexion, and alliances for mutual defence are always
regarded as a more laudable object than those for offensive war.
Treaties of an odious kind are those which lay greater burdens on one
party than on the other, which contain penalties for non-performance,
or which lead to an abrogation or infraction of former treaties.
Whereas, though engagements of a mixed nature may create a deviation
from former treaties, they may be taken either in a favourable or
odious light, according to the magnitude, or object of the change
produced. If it be for the sake of peace, it is better, taking all
circumstances into consideration, to rank them with those of a
favourable kind.
XI. The distinction made by the Roman law between acts of equity
and those of strict justice, cannot GENERALLY be applied to the law
of nations, though it may in some cases be adopted. Thus in any
transaction between the subjects of two countries, in each of which the
same form of legal proceeding is observed, the parties are supposed to
treat without any intention of deviating from the common rule and form,
unless they have expressly determined to the contrary. But in acts for
which no common rule is prescribed, as in donations and free promises,
there the parties are supposed to treat according to the strict letter
of the agreement.
XII. After the establishment of the former positions, the subject
naturally proceeds to the rules themselves, which are to be observed
in the interpretation of treaties. And in the first place we may
remark, that in things, which are not of an odious nature, words are
to be taken strictly in their popular meaning, and where they admit of
exceptions, or have more significations than one, it is lawful to use
that which is most extensive. As it has been already observed, that
both Logicians and Grammarians frequently use particular terms in a
general sense. Thus Cicero in pleading for Caecina, justly maintains
that the interlocutory decree, ordering THAT THE PERSON EJECTED FROM
HIS INHERITANCE SHOULD BE REINSTATED IN THE POSSESSION, implies not
only an ejectment, but extends to any forcible prevention of the
owner's taking possession.
In things of a favourable nature, if the parties engaged are acquainted
with the legal principles, upon which they proceed, or rest upon the
judgment of those who are so, the words used may be taken in their most
extensive signification, including even terms of art and of law.[47]
Again, we must never have recourse to a metaphorical interpretation,
except where the literal meaning would lead to a direct absurdity, or
would defeat the intention of a treaty.
On the other hand a passage may be interpreted in a more limited
signification, than the words themselves bear, if such interpretation
be necessary, to avoid injustice or absurdity. If no such necessity
exist, but equity or utility manifestly require a restriction to the
literal meaning, it must be most rigidly adhered to, except where
circumstances compel us to do otherwise. But in things of an odious
nature a figurative expression may be allowed in order to avoid
inconvenience or injustice. Therefore, when any one makes a grant, or
relinquishes his right, though he express himself in the MOST GENERAL
terms, his words are usually RESTRICTED to that meaning, which it is
probable he intended. And in cases of this kind, the hope of retaining
a thing is sometimes taken for the act of possession. In the same
manner it is understood that subsidies of men, promised by one party
only, are to be maintained at the expence of the power, who requires
them.
XIII. It is a famous question whether the word ALLIES includes only
those who were such at the time of making the treaty, or those who
might afterwards become so: as was the case in the treaty made between
the Roman people and the Carthaginians at the conclusion of the war
that had originated in a dispute about Sicily, by which treaty it was
stipulated that both powers should forbear attacking the allies of
each other. Hence the Romans inferred that although the convention
made with Asdrubal, by which he was prohibited from passing the
Iberus, had been of no service to them, as it had not been ratified by
the Carthaginians, yet if the Carthaginians sanctioned the conduct
of Hannibal in his attack upon the people of Saguntum with whom the
Romans, after the making of that convention, had entered into an
alliance, they should consider themselves as authorised to declare war
against the Carthaginians for having violated a solemn treaty. Upon
which Livy reasons in the following manner, "By the clause in favour of
allies on both sides, there was sufficient security for the Saguntines.
For there was no limitation of the words to those, who were allies at
that time, nor were they such as to exclude either power from making
new alliances. But if both sides were at liberty to make new alliances,
who could think it just to deprive the new allies of that protection
to which they would be entitled from treaties of amity? The exclusion
could reasonably go no further than to declare that the allies of the
Carthaginians should not be seduced to renounce their engagements, nor
if they did so, be admitted into alliance with the Romans."
The last passage is taken, almost word for word, from the third book
of Polybius. On which we may observe that the word ALLIES may strictly
mean those, who were so at the time, when the treaty was made, and,
without any forced interpretation, may also be extended to embrace
those, who afterwards became such. To which of these interpretations
the preference is to be given may be seen from the rules above given:
and according to those rules, it will be found, that alliances formed
after the making of the treaty will not be comprehended in it, because
it relates to the breach of a treaty, the violation of which is an
odious act, and tends to deprive the Carthaginians of the liberty of
redressing themselves by force against those who were supposed to have
injured them; a liberty sanctioned by the law of nature, and not to
be abandoned on any slight occasion. Were the Romans debarred then by
this rule from making any treaty with the Saguntines, and defending
them after they became allies? No! they had a right to defend them,
not by virtue of any treaty, but upon principles of natural justice,
which no treaty can annul. The Saguntines therefore with respect to
both powers were in the same situation, as if no engagement had been
made in favour of allies. In this case, it was no breach of treaty for
the Carthaginians, upon just grounds, to commence hostilities against
the Saguntines, nor for the Romans to defend them. Upon the same
principle, in the time of Pyrrhus, it had been stipulated, by treaty,
between the Carthaginians and Romans, that if either of them afterwards
entered into any engagement with Pyrrhus, the party so contracting
should reserve to itself the right of sending succours to the other, if
attacked by that king. Though in that case the war ON BOTH SIDES could
not be just, yet it would involve no infraction of any treaty. This is
an example of a case in equal treaties.
XIV. The case of an unequal treaty may be put, where it is agreed
that one of the confederate parties shall not make war, without the
consent, or by the injunction of the other, which was stipulated in
the treaty between the Romans and Carthaginians, after the conclusion
of the second Punic war. When the term WAR is applied to war of every
description, particularly to offensive rather than defensive war; in a
dubious case, it must be limited to its proper signification, lest the
treaty should operate as too great a restraint upon the liberty of that
power, which has engaged in the unequal treaty.
XV. Of the same kind is the promise given by the Romans, that Carthage
should be free, which could never mean the enjoyment of complete
independence, by a people, who had long before lost the right of making
war, and many of their other privileges. Yet it left them some degree
of liberty, so much at least, that they should not be obliged to remove
the seat of their government at the command of any foreign power, and
gave them a pledge that their city should not be disturbed. It was
in vain then for the Romans to urge that it was only the city which
was intended. Whereas those acquainted with the use of metaphorical
language know that by the city is frequently meant the inhabitants, and
government with its privileges, and not the mere walls and houses. For
the term, BEING LEFT FREE, implies that the people should enjoy their
own laws.
XVI. The nature of personal and real treaties is a frequent subject of
inquiry, which may properly be examined in this place. Indeed in all
transactions with a free people, the engagements entered into with them
are of a real nature; because the subject of them is a permanent thing.
So permanent, that, although a republican be changed into a regal
government, a treaty will remain in force: for the political body
continues the same, although the head be changed, and the sovereign
power, which before was diffused among many members, is now centered in
one. Yet this rule will admit of an exception, where it is evident that
the specific form of government made an essential part of the treaty,
as when two states make a federal union for the mutual preservation
of their political systems. But if a treaty be made with a KING OR
SOVEREIGN PRINCE, it does not consequently follow that it is to be
considered only as a PERSONAL and not a REAL treaty. For the name of a
person may be inserted in a treaty, not merely to give it the character
of a personal treaty, but to point out the contracting parties. And
this will be still more evident, if, as is usual in most treaties, a
clause is annexed declaring it to be perpetual, or made for the good of
the kingdom, or with the king himself, and his successors, and it will
also be considered as a real treaty, even if it is stated to be passed
for a definite time. The treaty between the Romans and Philip, King of
the Macedonians, seems to have been of this description, which, upon
the refusal of his son to continue it, gave rise to a war.
Other forms too besides those already named, and the subject itself,
will frequently supply no improbable grounds of conjecture. But if the
conjectures are equal on both sides, it will remain that favourable
treaties are supposed to be real or permanent, and odious ones only
personal. All treaties of peace or commerce are favourable. Yet all
treaties of war are not odious, especially those of the defensive
kind, such a character belonging only to offensive wars, from the
contemplation of the calamities which they inflict. It is presumed too,
that in the formation of treaties, the character of each party is taken
into the account, and that both are persuaded that neither of them will
commence hostilities, but from just and important causes.
What is usually said of societies terminating with the death of the
parties, has no connection with this subject, but relates to private
societies, the cognizance of which belongs to the civil law. Whether
it was right or wrong therefore in the people of Fidenae, the Latins,
Tuscans and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus,
Servius, to abandon the respective treaties made with those kings, it
is impossible for us now to decide, those treaties being no longer
extant. On the same point, Justin maintains a discussion, whether
those states, which had been tributary to the Medes, were upon a
change of government, released from their obligations. For the thing
to be considered is, whether the convention with the Medes had been
a voluntary act of their own. Indeed the argument of Bodinus can by
no means be admitted, which is, that treaties made with kings extend
not to their successors; For the obligation of an oath is limited
to the person of him, who takes it. It is true that the oath itself
can bind only the person who takes it; yet the engagements, which it
confirms, will be binding upon his heirs. Nor is it to be taken for
an established maxim, that oaths are the only foundation, on which
treaties rest. The engagement itself is sufficiently binding, the oaths
being only added to give it the greater sanctity. In the Consulship
of Publius Valerius, the Roman people had taken an oath to muster at
the command of the Consul. Upon his death, he was succeeded by Lucius
Quintius Cincinnatus. Some of the tribunes began to quibble, pretending
that the people were released from their obligation. Upon which Livy,
in his third book, remarks, that "at that time they had not degenerated
into the disregard of religious obligations, which marked his age: nor
did every one allow himself a latitude in explaining oaths, and laws,
but thought that he was bound to conform to their literal meaning."
XVII. A treaty made with a king continues in force, even though
the same king or his successor should be banished from the kingdom
by rebellious subjects. For the rights of a king, among which his
alliances may be reckoned, remain unimpaired, during the temporary loss
of his throne. A case to which the expression of Lucan may be applied,
that "order never loses its rights under any change of circumstances."
XVIII. On the other hand, any war, if it be with the consent of the
lawful sovereign, made upon the invader of his kingdom, or upon the
usurper of a free people's rights before his usurpation has received
public sanction, will be deemed no infraction of any former treaty
with the established authorities of that kingdom or country. For acts
of usurpation convey not immediately any right beyond that of bare
possession. And this is what was said by Titus Quintius to Nabis, "We
made no treaty of alliance and amity with you, but with the just and
lawful king of the Lacedaemonians." For in treaties the characters of
KING, SUCCESSOR, and the LIKE, carry with them an idea of a peculiar
and lawful right, which must always render the cause of USURPERS odious.
XIX. It was a question formerly discussed by Chrysippus, whether a
prize promised to him, who first reached the goal, could be given to
two, who reached it at the same time, or to neither. But as rewards of
merit are things of a favourable nature, it is the juster opinion that
they should divide the prize. Although Scipio, Caesar and Julian acted
more liberally, in giving the entire prizes to each of those who had
ascended the walls together.
What has been already said upon the literal or figurative application
of the words, in interpreting treaties, will be sufficient.
XX. There is also another kind of interpretation, arising from
conjectures, which apply exactly to the signification of the words
containing a promise or engagement; and that is of a twofold
description, either extending or limiting the meaning. But it is more
difficult to extend than to limit the acceptation of expressions. For
as in all matters the want of one essential requisite is sufficient
to defeat their effect; so in engagements, those conjectures, which
extend the obligation are not readily to be admitted. And it is much
more difficult here than in the case above mentioned; where words
allow a more extensive but less familiar acceptation. For here it is
seeking a conjecture to extend the words of a promise: the conjecture
therefore, which is to create an obligation, ought to be very certain.
Nor is it sufficient that there is some resemblance in the motives;
for the motive produced to confirm an obligation must be exactly the
same as that of the case under consideration. Neither is it always
proper to allege a motive for extending an obligation; because, as it
has been already said, motives, in actuating us to form engagements,
may sometimes be swayed by the will which often acts independently of
any just motive. To authorise therefore such an extension, it must be
evident that the motive, produced as an example and authority, was
the sole and effectual cause, which influenced the promiser, and that
he considered it in the same extensive view; for otherwise it would
have been unjust and prejudicial. The ancients in their treatises
on rhetoric follow the same rule, when, in speaking of the LETTER
and DESIGN, they give us one invariable form of expressing the same
sentiment, but in their syllogisms or arts of reasoning they point out
a way of interpreting what is not written, by what is written. In the
same manner too legal writers lay down rules for avoiding frauds. Now
if at a time, when there was no other mode of fortifying towns, than by
surrounding them with walls, it were stipulated that a certain place
should not be so surrounded, it is evident that to employ any other
means of fortification would be a breach of that treaty.
As in the above case the interpretation must be extended to guard
against every possible evasion, so in the following example, the
prohibition to assemble an armed force to assail us includes all
kinds of violence and force, by which our lives and security may be
endangered.[48]
XXI. Hence may be solved the question to be found in Gellius,
respecting a commission, whether it can be fulfilled by doing, not the
immediate act required, but some thing equivalent to it, or in a manner
more beneficial than in the form prescribed. For this deviation from
the written rule may be proper and lawful, where the prescribed form is
not essential towards attaining the object, or where, by departing from
it, that object can be better accomplished, according to the answer
given by Scaevola, that the person required to be bail and security for
another, may give an order to a third person to pay that money to the
creditor. But where such a latitude of interpretation is not evidently
admissible, we must adhere to what Gellius has said in the same place,
that it would be a dissolution of all trusts, if the party acting in
commission were, in all cases, left to his own discretion, rather than
bound by his written instructions.
XXII. An interpretation, restricted more closely than the literal
signification of the words containing a promise absolutely requires,
may arise either from some original defect in the intention of
the promiser, or from some subsequent emergency repugnant to such
intention. Thus if it were evident that an absurdity would follow the
fulfilment of a promise, this would be sufficient to prove an original
defect in the intention, because no man can be supposed to have
deliberately intended doing an absurd act. Or if the sole and effectual
reason, by which the promise was influenced, should have ceased, the
obligation also would be void, the sole ground on which it rested being
no longer in existence.
XXIII. In the next place, where any sufficient reason can evidently be
assigned for a promise or engagement, it is not the substance of the
promise itself, which is to be considered, so much as the reason for
which that promise was given.
XXIV. Thirdly, the contending parties must always be supposed to have
in contemplation the subject, and nothing but the subject, however
extensive a signification the words may seem to bear. This method of
interpretation also is handled by the ancient rhetorical writers, in
speaking of expression and design, and they place it under the head of
VARIATIONS IN OPINION.
XXV. In speaking of motives and reasons, it is proper to observe, that
they some times comprehend things, considered not according to their
actual existence, but according to their moral consequences: in which
case it is by no means right to limit the words of a treaty to their
literal meaning, but the utmost extent of interpretation is allowable,
in order to maintain the spirit as well as the letter of such treaties.
Thus if it be stipulated that no troops or ships shall be brought to a
certain place, or within a certain distance, the prohibition excludes
ALL ships or troops from being brought thither, even under the fairest
and most harmless pretences. For the purport of the treaty is to guard
not only against actual mischief but even against remote danger.
It is a point often disputed, whether the continuance of things in
their present state is a tacit condition, on which the fulfilment of
all promises is founded. A position that can by no means be maintained,
unless it appears that such continuance was the sole motive upon
which the treaties were made. As in many parts of history, we read of
ambassadors having relinquished their missions, and returned home,
upon finding the state of things so changed that the object of their
embassies was at an end.
XXVI. When an emergency arises repugnant to the general intention of an
act, it is explained by the ancient masters of rhetoric under the head
of expression and design. Now this variation between the emergency and
the intention is of a twofold nature. For the will and its intention
are to be collected either from natural reason or from some outward
sign. In judging of the will by natural reason, Aristotle, who has
treated the subject with great accuracy, makes the MIND the SEAT OF
JUDGMENT, and the WILL the SEAT OF EQUITY, which he nobly defines to
be the correction of that, wherein the law, by reason of its universal
nature is defective.[49]
And upon this principle all wills and treaties ought to be interpreted.
For as all cases could neither be foreseen nor expressed by the
lawgiver, it is necessary to leave a power of excepting the cases,
which he himself would have excepted if he were present. Yet this is
not to be done upon light grounds; for that would be exercising a
controul over the acts of another; but is only to be established upon
the clearest evidence and strongest proofs. The clearest proof we
can have of a want of equity, is where following the literal meaning
of the words would be unlawful, that is, repugnant to natural or
divine precepts. For such things, as are incapable of obligation, are
necessarily to be excepted. Quintilian the elder, says, "some things
although comprehended within the meaning of no law form a natural
exception." Thus any one, who has promised to return a sword, that
has been given up to him, ought not to return it into the hands of a
madman, as danger might result from it to himself or to other innocent
persons. Likewise a thing, which has been deposited with any one, ought
not to be returned to the hands of the person, who gave the pledge, if
the real owner demands it. I prove this says Triphonius to be justice,
which assigns to every one his own without disturbing the still juster
claims of another. For the reason, it has been already observed, is
founded on the institution of property, which makes it unjust not to
return a thing when the real owner is known.
XXVII. The need of equity too will appear in cases, where following the
literal meaning of the words will not be absolutely unlawful, yet, upon
a fair estimation, will be found too hard and intolerable. It might
impose a hardship inconsistent with the general condition of human
nature, or, upon comparing the person and matter under consideration
with each other, it might be found at variance with the general intent
of all law, which is to prevent evil and to redress injury. Thus, if
a person has lent a sum of money, or any other thing, for a CERTAIN
time, he may justly require the repayment or restoration of it WITHIN
that time, if he has great need of it himself: for acts of kindness are
of such a nature, that no one can be supposed intentionally to bind
himself thereby to manifest inconvenience or prejudice. In the same
manner a sovereign, who has promised assistance to an ally, will, IN
EQUITY, be excused from fulfilling his engagement, if he wants all his
strength at home to ward off danger or hostilities. The grant also of
immunities or privileges in ORDINARY cases, cannot be pleaded as an
exemption or exception from the services, which the state in PARTICULAR
emergencies requires.
From the above instances it appears that Cicero has too loosely worded
his proposition, "that such promises, as are prejudicial to the
person, to whom they are given, are not to be kept, nor, if they are
more prejudicial to the party giving, than beneficial to the person
receiving them." For it should not be left to the promiser to judge,
whether the fulfilment of his engagement will be serviceable to the
party receiving it, except in the case of the madman cited above:
nor is any TRIVIAL or IMAGINARY prejudice that might result from it,
sufficient to release the obligation. But it ought to be such, as,
according to the nature of the act, would necessarily be supposed to
form an exception. Thus any one, having promised his assistance to a
neighbour at a certain period, would not be bound to his engagement,
if he were detained at home by the sickness of a father or a child.
A case, which Cicero, in his first book of offices, has put in the
following terms, "If any one has undertaken to manage a cause, and,
in the mean time, his son is taken ill, it will be no breach of duty
in him not to perform what he has promised." There is a passage in
the fourth book of Seneca, ON BENEFITS, to the same effect. "I am
liable, _says he_, to be charged with levity, and a breach of faith,
if, things continuing as they were, when I made a promise, I do not
perform my engagement. But if any change has taken place, it leaves
me at liberty to reconsider the matter, and releases the obligation.
I promised my support in court, and it afterwards appeared that the
cause would be prejudicial to my own father. I promised to take a
journey, but afterwards heard that the road was infested with robbers.
I promised my presence on some particular occasion, but was prevented
from attending by the sickness of a son. In all these cases, to bind me
to my engagement, the circumstances ought to remain exactly the same as
they were when I made the promise."
XXVIII. It has been said that there are other indications of intention,
which require an equitable exception in favour of the present case. And
among such proofs there can be nothing stronger than the same words
used in another place, not where they directly oppose the present
meaning, for that would amount to a contradiction, but where they
clash with it, owing to some unexpected emergency, which the Greek
Rhetoricians call a circumstantial disagreement.[50]
XXIX. When there is any accidental collision between one part of
a written document and another, Cicero, in the second book of his
treatise ON INVENTION, has given rules for deciding which of them ought
to have the preference. Though his arrangement is not very accurate,
yet it is by no means to be neglected. To supply therefore this defect
of accuracy, the rules may be digested in the following order.
In the first place, a PERMISSION ought to give way to a COMMAND:
because a permission appears to be granted only in case there is
no weightier objection than its being an exception to a positive
precept, nor any preponderance in favour of an opposite determination.
Consequently, as the writer to Herennius says, what is positively
prescribed is more powerful than a bare permission.
In the next place what is required to be done at a FIXED time should
have the preference to what may be done at ANY time. From whence it
follows that the PROHIBITIONS of a treaty are generally of more weight
than its INJUNCTIONS: because the prohibitory power operates at ALL
times. But it is not so with injunctions, unless an express time for
their fulfilment is named, or they contain a tacit prohibition.
Among those treaties, which, in the above named respects, are equal,
the preference is given to such as are more particular, and approach
nearer to the point in question. For where particulars are stated,
the case is clearer, and requires fewer exceptions than general rules
do.[51]
Those prohibitions which have a penalty annexed to them, are of greater
weight than those, which have not; and those with a greater penalty are
enforced in preference to those that have a less. Those engagements
also which are founded upon causes of less magnitude and importance
ought to give way to those which have more laudable and useful objects
in view.
Lastly it is to be observed that a subsequent law or treaty always
repeals a former.
From what has been said an inference may be drawn in favour of sworn
treaties or agreements that they ought to be taken in the most usual
acceptation of the words, rejecting all implied limitations and
exceptions, and such as are not immediately necessary to the subject.
Consequently in a case, where a sworn treaty or engagement may happen
to clash with another not enforced by the obligation of an oath, the
preference ought to be given to the former.
XXX. It is often asked whether in doubtful points, a contract should be
deemed perfect, before the writings are made and delivered. We find
in Appian's history of the Mithridatic war, that it was upon this very
ground Murena objected to the convention between Sylla and Mithridates.
However it appears plain, unless it has been settled to the contrary,
that writing ought to be considered admissible as evidence of a
contract, though not as part of the substance, otherwise it is usually
expressed, as in the truce with Nabis, which was to be ratified from
the day the terms were WRITTEN and DELIVERED to him.
XXXI. We can by no means admit the rule laid down by some writers,
who maintain, that all engagements of kings, and states, ought to be
explained, as far as it is possible, upon the principles of the Roman
law: unless indeed it can be made to appear that among some states, in
their intercourse with each other, the CIVIL LAW is received as the LAW
OF NATIONS; a presumption which ought not to be hastily granted.
XXXII. As to the doubt, which Plutarch advances in his Symposiacs,
whether the words of the party offering, or those of the one accepting
a condition ought to be most attended to, it appears that where the
party accepting the terms is the promiser, the nature and substance
of the transaction will depend upon his words, if they are absolute
and unqualified. For if the offer is regarded as a positive engagement
to do certain acts, then the full extent of it will be seen by the
necessary repetition of the same words in the promise. But before a
condition is accepted, it is evident, as was seen in the chapter on
promises, that the promiser is not bound to its fulfilment; for no
right has been conferred by the one party, or acquired by the other.
Therefore the offer of a condition of this kind does not amount to a
perfect promise.
CHAPTER XVII.
ON DAMAGES OCCASIONED BY INJURY AND THE OBLIGATION TO REPAIR THEM.
On Damages occasioned by injury, and the obligation to repair
them--Every misdemeanor obliges the aggressor to repair the
loss--By loss is meant any thing repugnant to right strictly so
called--Distinction between fitness and strict right--Loss or
diminution of possession includes every injury done to the produce
as well as the property itself--Loss estimated from the time that
gain ceases--Injuries done by principals--By accessories--Injuries
done by the neglect of principal or of secondary agents--What
persons are implicated in those charges, and in what degrees--The
parties engaged answerable for all consequences--The case where
homicide or any other act of violence ensues--Case of robbery--Or
theft--Promises obtained through fraud or unjust fear--In what
cases the consequences are imputable to the suffering party--How
far the law of nations authorises states to take advantage of an
enemy's fear--How far sovereigns are answerable for any acts of
violence committed by their subjects--The case where subjects in
violation of their sovereign's permission and orders commit acts
of piracy upon allied or neutral states--No one answerable by the
law of nature for the mischief done by his cattle, his slaves,
or his ship--Damages allowed for injuries done to reputation or
honour--What kind of reparation allowed.
I. It has been said above that the rights due to us arise from three
sources, which are contract, injury and law. It is unnecessary here
to dwell upon the nature of contracts which has been already so fully
discussed. The next point therefore to which we proceed is an inquiry
into the rights resulting to us from injuries received. Here the name
of crime or misdemeanor is applied to every act of commission or
neglect repugnant to the duties required of all men, either from their
common nature or particular calling. For such offences naturally create
an obligation to repair the loss or injury that has been sustained.
II. By loss is meant a diminution of what any one possesses, whether
it be a right derived to him purely from the law of nature, or from
the addition of human authority, that is from the law of property,
contract, or civil law. God has given life to man, not to destroy,
but to preserve it; assigning to him for this purpose a right to the
free enjoyment of personal liberty, reputation, and the controul over
his own actions. The manner, in which property and contracts convey
to any one a right to things, as well as to the service of another,
has been shewn in the preceding part of this treatise. In the same
manner from the law every man derives his peculiar right; because the
law has the same, if not greater power over persons and things than
individuals themselves have. Thus by the appointment of law, a ward
has a right to demand the strictest diligence of a guardian, the state
of a magistrate, and not only the state, but every subject has a right
to require it; where the law expressly declares or evidently implies
that certain acts shall be performed. But the bare circumstance of an
action being fit or proper gives not the right of POLITICAL justice to
demand its performance, nor does the neglect of it entitle the party
suffering to any legal redress. Because it does not follow that a thing
must belong to a person because it is fit or beneficial for him. Thus,
as Aristotle says, there is no actual injustice, though it may be
illiberal to refuse assisting another with money. To the same purpose
Cicero, in his speech for Cneius Plancus, says, that giving their votes
to whom they please, or withholding them if they think proper, is the
true characteristic of a free people. He afterwards, indeed, corrects
his assertion by adding, that they may happen to do what they like,
rather than what they ought to do, taking the word OUGHT to signify
propriety.
III. A precaution is necessary here, in order to avoid confounding
things of a different kind.
Now those who are entrusted with the power of appointing magistrates,
are bound, from motives of public good, to chuse the properest persons,
and this is what the state has a RIGHT to require of them. They are
bound therefore to repair any loss which the state may sustain by the
choice of improper persons. So any subject who is not disqualified,
though he has no peculiar right to an office, has an equal right with
others to endeavour to obtain it. In the exercise of which right,
if, he is obstructed by violence or fraud, he may recover damages,
not to the full value of the office which he sought, but according
to the probable loss which he may reasonably be supposed to have
suffered. Similar which is the right of a legatee, when a testator has
been prevented by fraud or violence from making a bequest. For the
capability of receiving a legacy is a kind of right, which to obstruct
a testator from conferring, is undoubtedly an injury.
IV. The loss or diminution of any one's possessions is not confined
to injuries done to the SUBSTANCE alone of the property, but includes
every thing affecting the produce of it, whether it has been gathered
or not. If the owner himself had reaped it, the necessary expence of
reaping, or of improving the property to raise a produce, must also be
taken into the account of his loss, and form part of the damages. For
it is an established maxim that no one ought to derive benefit from the
loss of another.
V. Damages are to be computed too, not according to any ACTUAL gain,
but according to the REASONABLE expectation of it. Which in the case of
a growing crop may be judged of by the general abundance or scarcity of
that particular season.
VI. But besides the person immediately doing an injury, others may be
bound also to repair the losses of the suffering party. For as a person
may be guilty of offences by negligence as well as by the commission
of certain acts, so they may be done also by accessories, as well as
principals. Now a principal in any crime or offence is one, that urges
to the commission of it, that gives all possible consent, that aids,
abets, or in any shape is a partner in the perpetration of it.
VII. An accessory is one who gives his counsel, approbation, and
assent. For where is the difference, says Cicero, in his second
Philippic, between advising an act, and approving of it?
VIII. and IX. The obligation to repair the losses suffered by
negligence may be considered in a two-fold light. Firstly, when any
person, whose peculiar office it is, neglects either to forbid the
commission of an injury, or to assist the injured party. And secondly,
when the person, who ought to do it, either does not dissuade from the
commission of an offence, or passes over in silence, what he is bound
to make known. In these cases, when it is said that a person OUGHT to
do, or to forbear doing certain actions, it is meant that he is bound
by that right, which strict justice requires, whether that duty arises
from law, or from the capacity, which the person bears. For though it
may be wrong to omit any duty enjoined by the law of charity, there
can be no redress for such omission, but every LEGAL REMEDY must be
founded on some PECULIAR RIGHT.
X. It is to be observed also that all the parties above-mentioned, if
they have been the real occasion of loss to any one, or have abetted
the person doing him the injury, are so far implicated in the guilt,
as to be liable to full damages, or, at least, proportionably to the
part they have taken. For it may and often does happen that a crime
would have been committed by an offender, even without the aid of
other principals or accessories. In which case he alone is answerable.
Yet neither principals nor accessories will be allowed to plead as an
excuse, that if they had not aided or abetted, others would have been
found to assist and encourage the perpetrator in the commission of the
act. Especially, if it appears that without such assistance from them
the crime would never have been committed. For those other imaginary
abettors would themselves have been answerable, if they had given their
advice or aid.
XI. In the scale of implication the first degree applies to those, who
by their authority, or other means have compelled or urged any one
to the commission of an offence. On failure of these the perpetrator
himself has the greatest share of guilt, and next to him, others who
have been concerned. In short, all individuals, whose hands have been
engaged in the perpetration, are guilty, though they have not been the
sole authors of the act.
XII. Now he who is answerable for an act, is answerable for all
the injurious consequences attending it. Seneca in one of his
controversies, treating upon this point, puts the case of a plane-tree
set on fire, by which a house was burnt, and he subjoins the following
remark, "although the mischief went further than was intended, yet
the person doing it was answerable for the WHOLE, as much, as if
he had done it by design. For any one that puts his defence upon
the plea of UNINTENTIONAL INJURY, ought to have abstained from all
mischief whatsoever." When Ariarathes, king of Cappadocia had wantonly
obstructed the channel of the river Melas, which discharges itself
into the Euphrates, the swell of waters bursting the mounds, the
Euphrates rose to such a height, as to occasion excessive damage to the
Cappadocians, the Galatians, and the Phrygians. Upon which the decision
of the matter being left to the Romans, they imposed upon him a fine of
three hundred talents.
XIII. XIV. XV. and XVI. But to proceed with other instances of injury,
which render the parties committing them liable to repair the losses
occasioned thereby. The case of excusable homicide may be alleged as
one, wherein the person, who has committed it, is bound to make every
reasonable compensation to the family, dependents, and connections
of the deceased party, in proportion to the loss, which they have
sustained from his death. As Michael the Ephesian in the fifth book
of Aristotle's Ethics has observed, that the compensation made to the
parents, the wife or children of the deceased is nearly the same as if
it could be made to himself. The writer is here speaking of excusable
homicide, that is, when the person by whom it is committed, does it not
in the immediate discharge of some legal duty. Wherefore if any one, in
defending himself, has killed another from whom he might have escaped,
though he may have violated the law of charity, yet he has not incurred
the penalty of a capital offence.
Upon the same principle the person, who has maimed or mutilated
another, will be bound to make him a compensation, proportionably to
the means of subsistence which he is deprived of by such a calamity.
A thief or a robber is bound to restore what has been taken, and to
return it with all the improvements it may have acquired, or to make
reparation to the owner, in proportion to the gain, which the privation
has prevented him from making, or to the actual value of the thing
itself. If the thing has been irretrievably consumed, the estimation of
damages must be made, according to a medium between the highest and the
lowest value.
To this class of offences and due reparation may be referred all frauds
upon the public revenue, all unjust decisions, or all false evidence,
by which states or individuals are injured.
XVII. Contracts, or promises obtained by fraud, violence or undue fear
entitle the injured party to full restitution. For perfect freedom from
fraud or compulsion, in all our dealings, is a RIGHT which we derive
from natural law and liberty.
With the same class of offenders we may rank all men in office, who are
unwilling to discharge their duty without a bribe.
XVIII. When a person has HIMSELF been the occasion of the fraud or
violence, the consequences are imputable to his own conduct. For
where a voluntary act gives rise to INVOLUNTARY consequences, those
consequences, considered in a moral light, are to be deemed the fruits
growing out of the exercise of a free will.
XIX. But to connect the preceding cases and arguments with public and
national concerns, it is necessary to observe, that it is a maxim
introduced and established by the consent of all nations that the wars
which are declared and conducted by the authority of the sovereign
power on both sides are alone entitled to the denomination of just
wars: And the enemy has no right to demand restitution for what the
prosecution of such wars has reduced him to abandon through fear. It
is upon this principle we admit the distinction which Cicero has made
between an enemy, towards whom the consent and law of nations oblige us
to observe many common rights, and between robbers and pirates. For any
thing given up to pirates or robbers, through fear, is no lawful prize:
but it may be recovered, unless a solemn oath of renunciation has been
taken. This is not the case with the captures made in just war.
The justification which Polybius makes for the Carthaginians, in the
second Punic war, carries with it an appearance of equity, though it
is not a question immediately founded upon the law of nations. They
alleged as a reason for their making that war, that, when they were
engaged in quelling a mutiny of their own mercenaries, the Romans had
declared war, seized upon Sardinia, and levied contributions of money.
XX. Sovereign Princes and States are answerable for their neglect, if
they use not all the proper means within their power for suppressing
piracy and robbery. And on this account the Scyrians were formerly
condemned by the Amphictyonic council.
When some of the states of the united Provinces had, on a particular
occasion, granted commissions to many privateers, and those adventurers
plundered friends and enemies alike, and became general pirates, it
was a subject of great discussion, whether those states were justified
in having made use of the services of desperate and abandoned men,
without exacting sufficient security for their good conduct. At that
time, it was maintained that they were bound to nothing more, than to
punish or deliver up the offenders, if they could be found, and to see
justice done by a forfeiture of their property. For they themselves
had neither authorised those UNJUST acts of plunder, nor shared in
the fruits of them. They had even strictly prohibited the privateers
from molesting the subjects of friendly powers. As to their taking
securities, there was no obligation to do that: for they had a right
to grant a GENERAL commission to all their subjects to seize upon
the enemy's property: a thing, which had frequently been done. Nor
could that particular commission be considered as an act of injustice
against either allies or neutrals; since even without such permission
individuals might have fitted and sent out armed vessels. The states
could not foresee, nor consequently provide against the misconduct of
those adventurers, who had exceeded their commission; and if nations
were to decline using the assistance of wicked men, no army could ever
be collected. And it has been confirmed by the authority both of France
and England, that a sovereign cannot answer for every injury done to
the subjects of a friendly power by his naval or military forces;
especially if it is plain that they acted in violation of his orders.
But in what cases any one is released from being answerable for what
is done by his subordinate agents, is a point not so much for the law
of nations, as for the municipal law, and particularly the maritime
code of each country to decide. In a case similar to that alluded to,
a decision of the supreme court of judicature was made against the
Pomeranians two centuries at least before.
XXI. It is the CIVIL law too, which makes an owner answerable for the
mischief or damage done by his slave, or by his cattle. For in the eye
of natural justice he is not to blame. So neither is the person, whose
ship, by running foul of another, has damaged it, though by the laws
of many nations, and of ours among the rest, the damages are usually
divided between both parties, owing to the difficulty of deciding, who
was in fault.
XXII. Damages are allowed too for any injury done to our honour or
reputation, by assault, slander, or various other ways. In which, as
well as in theft and other crimes the nature of the offence is to be
estimated by its consequences. For the reparation in such cases answers
to the penalty imposed for crimes. And that reparation is made some
times by acknowledging the injured party's innocence; and some times by
a compensation in money, which is a standard value of all things.
CHAPTER XVIII.
ON THE RIGHT OF EMBASSIES.
Right of Embassies, an obligation arising out of the law of
nations--Where it obtains--Whether Embassies are always to be
admitted--Dismissal or punishment of ambassadors engaging in
plots not to be considered as a harsh measure, but an act of
self-defence--A power to whom no ambassador has been sent,
not bound to respect the rights of embassy--An enemy to whom
an ambassador is sent bound to respect his rights--The law of
retaliation no plea for ill treatment of an ambassador--This right
of protection extends to an ambassador's suite, if he thinks proper
to claim it--To his moveable property--Examples of obligation
without the right of compulsion--Importance of the sacred character
of ambassadors.
I. Hitherto the pursuit of our inquiries has led us to examine those
rights to which we are entitled by the law of nature, occasionally
touching upon those points where its authority is farther confirmed by
the voluntary law of nations. And that voluntary law as it is called,
gives rise to certain obligations, which now remain for our discussion,
and in which the rights of ambassadors form a leading feature. Almost
every page of history offers some remark on the inviolable rights of
ambassadors, and the security of their persons, a security sanctioned
by every clause and precept of human and revealed law. Nor is it
surprising that the persons of those should be deemed inviolable,
who form the principal link in that chain, by which sovereigns and
independent states maintain their intercourse with each other. To offer
violence to them is not only an act of INJUSTICE, but, as Philip in his
letter to the Athenians says, is acknowledged by all to be an act of
IMPIETY.
II. But whatever rights the law of nations may confer upon ambassadors,
it is necessary in the first place to observe, that none are entitled
to them, but those, who are sent by the sovereigns of independent
countries to each other. For the privileges of provincial, or municipal
deputies sent to the states general of any country are regulated by the
particular laws of that country and not by the law of nations.[52]
Thus we find, in the first book of Livy, an ambassador styling himself
a public messenger of the Roman People; and, in the sixth book of the
same historian, we have a declaration of the senate, confining the
rights of embassies to the intercourse between foreign powers, and
excluding citizens from the same privileges in their transactions with
each other. Upon this topic, the authority of Cicero may be cited, who,
in order to shew the impropriety of sending ambassadors to Antony,
observes, that they are not dealing with a Hannibal or a foreign enemy,
but with one of their own citizens.
Now Virgil has so clearly explained WHO are to be reckoned FOREIGNERS,
that we need not have recourse to lawyers, to understand what is so
well expressed by the poet, who says, "I look upon every country as
foreign, which owns not the sway of our sceptre." Aen. vii. 369.
A state therefore connected with another though by an unequal treaty,
if it retain its independence, will have a right of sending embassies.
The Princes of Germany, who were in some respects subject to the
Emperor, as their head, being Sovereign Princes possessed the right of
sending ambassadors to foreign states. But Kings who have been entirely
subdued in just war, and stripped of their dominions, have, with all
their other sovereign rights, lost that of sending ambassadors. It was
for this reason, that Paulus Aemilius made prisoners of the messengers
sent to him by Perseus, whom he had conquered.
In civil wars necessity sometimes gives birth to new rights in
violation of former rules. When for instance, a kingdom is so equally
divided between two parties, that it is a matter of doubt which of
them constitutes the nation, or in a disputed succession between two
claimants of the crown; the kingdom may be considered as forming two
nations at the same time. Tacitus, considering each party in such
cases, as entitled to the rights of the law of nations, condemns the
Flavians for having, in the rage of civil dissensions, violated, in
the persons of the Vitellian ambassadors, those privileges, which
are respected even among FOREIGN nations. Pirates and robbers, as
they form no civil community, cannot rest any claim to protection
and support upon the law of nations. Tiberius, as we are informed by
Tacitus, when Tacfarinas sent ambassadors to him, spurned at the idea
of treating with a robber, as with a lawful enemy. Yet sometimes a
pledge of public faith, and the rights of embassy are allowed to men of
that description, which was done by Pompey to the fugitives from the
Pyrenean forest.
III. There are two points upon which the privileges granted by the law
of nations to ambassadors turn. In the first place, they have a right
to be admitted into any country, and secondly to be protected from all
personal violence. Respecting the former of these points, there is
a passage in the eleventh book of Livy, where Hanno, a Carthaginian
senator inveighs against Hannibal for not having admitted into his camp
ambassadors, who came from the allies, and on their behalf; as he had
thereby overturned the law of nations.
But this rule by no means compels nations to give an UNQUALIFIED
admission to all ambassadors. For that is what the law of nations
can never intend: it only prohibits the refusal of admission without
sufficient grounds.
There are various motives which may afford a sufficient plea for
such refusal. There may be an objection to the power who offers to
treat, to the person sent upon the embassy, or perhaps to the object
of his mission. Thus at the suggestion of Pericles, Melesippus, the
Lacedaemonian ambassador, was sent out of the territories of Athens;
because he came from an enemy, who had no pacific intentions. The
senate of Rome said, that they could receive no embassy from Carthage,
as long as the Carthaginian army remained in Italy. The Achaeans
refused to admit the ambassadors of Perseus, who were secretly
MEDITATING war against the Romans. Upon the same grounds Justinian
rejected an embassy from Totilas, and the same was done by the Goths
at Urbino to messengers from Belisarius. Polybius relates in the third
book of his history, that every power drove away the ambassadors of the
Cynethensians, as they were so infamous a people.
We have an instance of the second kind, where the objection is made to
the PERSON sent on an embassy, in the case of Theodore, who was called
the atheist, and whom Lysimachus refused to receive in the character
of an ambassador sent from Ptolemy, and the same thing has frequently
happened to others, against whom peculiar motives of aversion have
existed.
In the third place, there may be sufficient grounds for refusing to
admit an ambassador, if the object of his mission be of a suspicious
kind, as was the case with that of Rhabshakeh the Assyrian, whom
Hezekiah had reason to suspect of coming with a design to excite his
people to rebellion. Or the refusal may be justified, where it is not
consistent with the dignity or circumstances of one power to enter into
any treaty, or intercourse with another. For this reason the Romans
sent a declaration to the Aetolians, that they should send no embassy,
but with the permission of their general, and Perseus was not allowed
to send one to Rome, but to Licinius. Jugurtha's ambassadors too, as
Sallust informs us, were ordered to leave Italy within the space of
ten days, unless they came with offers from that prince to surrender
himself, and his kingdom.
There may often be the best reasons for a sovereign's refusing to allow
of a RESIDENT minister at his court; a practice, so general in the
present day, but totally unknown to the ages of antiquity.
IV. As to the personal exemption of ambassadors from arrest,
constraint, or violence of any kind, it is a subject of some difficulty
to determine, owing to the varieties of opinion entertained by the
most celebrated writers on the question. In the consideration of this
matter, our attention is directed in the first place to the personal
privileges and exemptions of ambassadors themselves, and next to those
of their attendants, and their goods. With respect to their persons,
some writers are of opinion, that it is ONLY from UNJUST VIOLENCE,
and ILLEGAL CONSTRAINT, that the law of nations protects ambassadors.
For they imagine that their privileges are to be explained according
to the common principles of the law of nature. Others again suppose
that ambassadors are not amenable to punishment for ALL offences, but
only for such as amount to a transgression of the law of NATIONS, the
principles of which are of such general extent, as to include the
law of nature: consequently there can be no offences for which an
ambassador is not punishable, except for those actions that are made
such by the positive rules of MUNICIPAL or CIVIL LAW.
Others again consider these public representatives of states and
crowned heads, as only liable to punishment for offences affecting
the dignity or governments of the sovereigns to whom they are sent.
While, on the other hand, there are some writers who maintain that for
any state to punish an ambassador for ANY CRIME WHATEVER is highly
dangerous to the independence of foreign powers; but that all offenders
of that description ought to be left to the laws of their respective
countries, to be punished or not according to their deserts, upon due
complaint being made to the sovereigns by whom they were sent.
Some few writers, indeed, in laying down the rule to be observed
in such cases, have decided that an appeal should be made to other
independent and disinterested powers, which may be considered rather
as a matter of DISCRETION, than of ABSOLUTE RIGHT. But the advocates
of all these various systems have come to no definite conclusion in
support of their favourite opinions. For this is a right which cannot,
like the law of nature, be established upon unchangeable rules, but
derives all its efficacy from the will of nations. Nations if they
had thought proper, certainly might have laid down ABSOLUTE rules of
security for ambassadors, or coupled them with certain exceptions.
The argument is supported on one side by the urgent necessity of
heinous crimes being punished, and on the other, the utmost latitude
of exemption is favoured on account of the utility of embassies, the
facility of sending which ought to be encouraged by every possible
privilege, and security. To settle the point therefore, we must
consider how far nations have agreed among themselves upon these
principles; the proofs of which can only be found in the evidence of
history.
Many instances may be produced in favour of both opinions. And in
cases like this, the opinions of those celebrated for their judgment
and knowledge will be of no small weight, but in some cases we must
rest upon conjectures. On this subject the two eminent historians,
Livy and Sallust, may be quoted as authorities, the former of whom,
in mentioning the ambassadors of Tarquin, who had been guilty of
fomenting treasonable conspiracies at Rome, says, "that although they
deserved to be treated as enemies for their guilty conduct, yet the
privilege, which they derived from the law of nations, prevailed over
every other consideration." Here we see that the rights of ambassadors
could not be annulled even by the most criminal acts of hostility.
But the observation made by Sallust, relates rather to those who come
in the train of an embassy than to ambassadors themselves. The law of
nations surely then will not deny the same privilege to a principal,
which it evidently allows to those who form but a subordinate part in
the public mission. The historian says, that "Bomilcar was arraigned
and tried rather upon principles of equity and natural justice, than
in conformity to the law of nations, as he belonged to the train of
Jugurtha; who had come to Rome under the pledge of public faith."
Equity and natural justice require punishment to be inflicted on ALL
offenders, whereas the law of nations makes an exception in favour of
ambassadors, and those who have the public faith for their protection.
Wherefore to try or punish ambassadors, is contrary to the law of
nations, which prohibits many things, that are permitted by the law of
nature.
The law of nations, thus deviating from the law of nature, gives rise
to those interpretations and conjectures, which reconcile with the
principles of justice a greater extension of privileges than the law
of nature strictly allows. For if ambassadors were protected against
nothing more than violence and illegal constraint, their privileges
would confer no extraordinary advantage. Besides, the security of
ambassadors is a matter of much greater moment to the public welfare
than the punishment of offences. Because reparation for the misconduct
of an ambassador may be looked for from the sovereign, by whom he is
sent, unless that sovereign chuses to expose himself to hostilities
by approving of his crimes. An objection to such privileges is made
by some, who assert, that it is better for one person to be punished
than for whole nations to be involved in war. But if a sovereign has
SECRETLY given his sanction to the misconduct of his ambassador, his
APPARENT intentions to punish that ambassador will not deprive the
injured power of the right to seek redress by commencing hostilities.
On the other hand, the right of ambassadors would rest upon a very
slippery foundation if they were accountable, for their actions, to any
one but their own sovereigns. For as the interests of powers sending,
and of those receiving ambassadors, are in general different, and some
times even opposite, if a public minister were obliged to consult the
inclinations of both, there would be no part of his conduct, to which
they might not impute some degree of blame. Besides although some
points are so clear, as to admit of no doubt, yet universal danger is
sufficient to establish the equity and utility of a general law. For
this reason it is natural to suppose, that nations have agreed, in
the case of ambassadors, to dispense with that obedience, which every
one, by general custom, owes to the laws of that foreign country, in
which, at any time, he resides. The character, which they sustain, is
not that of ordinary individuals, but they represent the Majesty of the
Sovereigns, by whom they are sent, whose power is limited to no local
jurisdiction. As Cicero, in his eighth Philippic, speaking of a certain
ambassador, says, "he carried with him the Majesty of the Senate,
and the authority of the State." From hence it is concluded, that an
ambassador is not bound by the laws of the country, where he resides.
If he commit an offence of a trivial nature, it may either be suffered
to pass unnoticed, or he may be ordered to leave the country.
Polybius relates an instance of an ambassador, who was ordered to leave
Rome, for having assisted some hostages in making their escape. Hence
it is obvious why the Romans inflicted corporeal punishment upon an
ambassador of Tarentum, because the Tarentines were at that time their
own subjects, by right of conquest.
If a crime is of a notorious nature, affecting the government, an
ambassador may be sent home, and his sovereign required to punish, or
deliver him up, as we read of the Gauls having done to the Fabians.
But, as we have before occasionally observed, all human laws are framed
upon such principles, as, in cases of extreme necessity, to admit
of equitable relaxations, among which the privileges of ambassadors
may be reckoned. But these extreme cases of necessity may, according
to the law of nations, as will be seen hereafter, in discussing the
effects of just and solemn war, prevent punishment in CERTAIN cases,
though not in ALL. For it is not the act of punishment itself, which is
objected to, either in respect to time, or manner, but the exemption is
created to prevent the greater public evil, which might arise from the
punishment of the offender. To obviate therefore any imminent danger,
if no other proper method can be devised, ambassadors may be detained
and interrogated. Thus the Roman Consuls seized the ambassadors of
Tarquin, previously taking care to secure their papers, to prevent
the evidence, which they might afford, from being destroyed. But if
an ambassador excites and heads any violent insurrection, he may be
killed, not by way of punishment, but upon the natural principle of
self-defence. The Gauls therefore might have put to death the Fabii,
whom Livy calls violators of the law of nature.
V. Mention has before been frequently made of the exemptions, by which
ambassadors are protected from all personal constraint and violence,
and it is understood that all powers are bound by a tacit agreement,
as it were, from the time of admitting an ambassador, to respect these
exemptions. It MAY and indeed sometimes DOES happen, that one power
gives notice to another that no ambassador will be received, and if
one is sent, that he will be treated as an enemy. A declaration to
this effect was made by the Romans to the Aetolians, and, on another
occasion, the Vejentian ambassadors were ordered to leave Rome, with a
menace, if they refused to comply, of being treated in the same manner
as the Roman ambassadors had been treated by their king Tolumnius, who
had put them to death. The Samnites too forbade the Romans to go to any
council in Samnium, under pain of forfeiting their lives, or, at least,
their personal safety.
The above law does not bind a power, through whose territories
ambassadors pass without leave. For, if they are going to an enemy
of that power, or returning from him, or are engaged in any hostile
design, they may lawfully be treated as enemies; which was done by the
Athenians in the case of the messengers passing between the Persians
and Spartans, and by the Illyrians in that of those, who carried on the
intercourse between the Essians and Romans. Xenophon maintains that
in certain cases they may be made prisoners, as Alexander made those,
who were sent from Thebes and Lacedaemon to Darius, and the Romans
those, whom Philip sent to Hannibal, and Latius those of the Volscians.
For to treat ambassadors with any degree of rigour, EXCEPT UPON THOSE
SUFFICIENT GROUNDS, would be deemed not only a breach of the law of
nations, but a personal offence against the sovereigns, to whom they
are going, or by whom they are sent. Justin informs us, that Philip
II, king of Macedon, sent an ambassador to Hannibal with credentials,
empowering him to make an alliance, and that, when this ambassador
was seized and carried before the Senate of Rome, they dismissed him
without farther molestation, not out of respect to the king, but to
prevent a doubtful enemy from becoming a decided one.
VI. But if an embassy, admitted by an ENEMY is entitled to all the
privileges of the law of nations, much more so is one, admitted by
a power UNFRIENDLY, but not engaged in ACTUAL HOSTILITIES. Diodorus
Siculus says, that a messenger with a flag of truce claims all the
security of peace, even in the midst of war. The Lacedaemonians, who
had murdered the heralds of the Persians, were said by that act to
have confounded every distinction between right and wrong, as it is
acknowledged by all nations. For legal writers lay it down as a rule,
that to offer personal violence to ambassadors, whose characters are
deemed sacred, is a defiance of the law of nations, and Tacitus calls
the privileges we are now discussing, the rights of embassy, sanctified
by the law of nations.
Cicero, in his first speech against Verres, asks, if ambassadors ought
not to be safe in the midst of an enemy's country, or even in his camp?
Innumerable other instances of this kind might be produced from the
highest authorities both ancient and modern. And it is with reason that
such privileges are revered, for in the midst of war many circumstances
arise, which cannot be decided but through ambassadors, and it is
the only channel through which proposals of peace can be made, and
confirmed.
VII. It is frequently made a subject of inquiry, whether the ambassador
of a sovereign, who has exercised any act of cruelty or rigour, will be
subject to the law of retaliation. History furnishes many instances,
in which punishment has been inflicted in such a manner. But history
is sometimes nothing more than a catalogue of actions marked with
injustice, and ungovernable fury. Whereas the law of nations, by its
privileges, designs to secure the dignity not only of sovereigns
themselves, but also that of the ambassadors whom they employ.
Consequently there is a tacit agreement understood to be made with
the latter, that HE shall be exempt, not only from any ill treatment,
that may affect the principal, but from such likewise, as may affect
himself. So that it was a magnanimous answer, conformable to the law
of nations, which Scipio made, when the Roman ambassadors had been
ill-treated by the Carthaginians, and the Carthaginian ambassadors were
brought before him, upon his being asked, in what manner they should
be treated, he replied, not as the Roman ambassadors had been by the
Carthaginians. Livy adds, that he said, he would do nothing unbecoming
the character and laws of the Roman people. Valerius Maximus assigns
the same language to the Consuls, on an occasion similar, but prior to
this. In addressing Hanno, they said, "the pledge of faith, which our
state has given, releases you from any such fear." For even at that
time, Cornelius Asina, in violation of his public character, had been
arrested and thrown into prison by the Carthaginians.
VIII. The train too of an ambassador, and all the plate belonging to
him are entitled to a peculiar kind of protection. Which gave rise to
the passage in the ancient song of the Heralds, "O Sovereign, do you
make me a royal messenger from the Roman citizens? and do you confer
the same privileges on my train and every thing, which belongs to me?"
And by the Julian law, an injury affecting not only ambassadors, but
even their attendants, is pronounced to be a violation of public right.
But these privileges of attendants are only granted so far as an
ambassador himself may think proper: so that if any of them has
committed an offence, he must be required to deliver up the offender to
punishment. He must be REQUIRED to give him up. Because no violence,
in taking an offender of that description must be used. When the
Achaeans had arrested some Lacedaemonians who were along with the
Roman ambassadors, the Romans raised a great outcry against the act,
as a violation of the law of nations. Sallust's opinion in the case of
Bomilcar has already been referred to.
But should the ambassador refuse to give up such offender, redress must
be sought in the same manner, as would be done with respect to the
ambassador himself. As to his authority over his household, and the
asylum, which he may afford in his house to fugitives, these depend
upon the agreement made with the power, to whom he is sent, and do not
come within the decision of the law of nations.
IX. Neither can the moveable property of an ambassador, nor any thing,
which is reckoned a personal appendage, be seized for the discharge of
a debt, either by process of law, or even by royal authority. For, to
give him full security, not only his person but every thing belonging
to him must be protected from all compulsion. If an ambassador then
has contracted a debt, and, as is usual, has no possession in the
country, where he resides: first of all, courteous application must be
made to himself, and, in case of his refusal, to his sovereign. But
if both these methods of redress fail, recourse must be had to those
means of recovery, which are used against debtors residing out of the
jurisdiction of the country.
X. Nor is there, as some think, any reason to fear, that if such
extensive privileges were established, no one would be found willing
to enter into any contract with an ambassador, or to furnish him with
necessary articles. For the same rule will hold good in the case of
ambassadors, as in that of Kings. As sovereigns, who for the best
of reasons, are placed above the reach of legal compulsion, find no
difficulty in obtaining credit.
XI. The importance of such exemptions may be easily inferred from the
innumerable instances, in which both sacred and profane history abound,
of wars undertaken on account of the ill-treatment of ambassadors. The
war which David made against the Ammonites, on that account, affords
us a memorable instance from holy writ; and as a profane writer,
Cicero may be cited, who deemed it the most justifiable ground of the
Mithridatic war.
[Illustration: _PEACE_
_By Gari Melchers--From a panel painting in Library of Congress._]
CHAPTER XIX.
ON THE RIGHT OF BURIAL.
Right of burying the dead founded on the law of nations--Origin
of this right--Due to enemies--Whether due to those guilty
of atrocious crimes--Whether to those, who have committed
suicide--Other rights also authorised by the law of nations.
I. The right of burying the dead is one of those originating in the
voluntary law of nations. Next to the right of ambassadors Dion
Chrysostom places that of burying the dead, and calls it a moral act,
sanctioned by the unwritten law of nature: And Seneca, the elder, ranks
the law, which commands us to commit the bodies of the dead to their
parent earth, among the UNWRITTEN precepts, but says, they have a
stronger sanction than the RECORDED laws of all ages can give. For, in
the language of the Jewish writers, Philo and Josephus, they are marked
with the seal of nature, and under the name of nature, we comprehend
the customs, that are common to all mankind, and agreeable to natural
reason.
We find it some where said by Aelian, that our common nature calls
upon us to cover the dead, and some writer, in another place, observes
that all men are reduced to an equality by returning to the common
dust of the earth. Tacitus informs us, in b. vi. of his Annals, that,
when Tiberius made a general massacre of all, who had been connected
with Sejanus, and that he forbad them the rites of burial, every one
was struck with horror to see the last offices of humanity refused;
offices, which Lysias the orator calls the common hopes of our nature.
As the ancients measured the moral character of every people by their
observance or neglect of these rights, in order to give them a greater
appearance of sanctity, they ascribed their origin to the authority and
institutions of their Gods; so that in every part of their writings we
meet with frequent mention of the rights of ambassadors, and the rights
of burial, as founded upon divine appointment.
In the Tragedy of the Suppliants, Euripides calls it the law of the
Gods, and in the Antigone of Sophocles, the heroine makes the following
reply to Creon, who had forbidden any one under pain of death, to
give the rites of burial to Polynices, "A prohibition, like this, was
not revealed by the supreme will, nor by that heaven-born justice,
which has established those laws of respect for the dead: nor did
I think that you could command mortals to transgress the unwritten
and inviolable laws of God. They were not established to-day, nor
yesterday, but from all eternity and will for ever be in force. Their
sources are unknown. Am I through fear of a mortal, and by obeying his
unjust commands, to incur the wrath of Heaven?"
The authority of Isocrates, and of Herodotus, and that of Xenophon, in
the sixth book of his Grecian History, may be appealed to in support of
the honours, that have at all times been paid to the dead. In short,
these offices of humanity are recommended by the conspiring testimony
of the orators, historians, poets, philosophers and divines of all
ages, who have dignified them with the names of the most splendid
virtues.
II. There seems to be no general agreement of opinion upon the
origin of funeral rites, and the variety of ways, in which they were
performed. The Egyptians EMBALMED, and most of the Greeks BURNED the
bodies of the dead before they committed them to the grave. Cicero, in
the 22d chapter of his second Book on Laws, speaks of the interment
alone, which is now in use, as the most ancient method, and that, which
is most congenial to nature, and in this he is followed by Pliny.
Some think that men paid it as a VOLUNTARY debt of nature, which
they knew that, AT ANY RATE, they would be obliged to discharge. For
the divine sentence, that the body should return to the dust, from
which it was taken, was not passed upon Adam only, but, as we find it
acknowledged by the writings of Greece and Rome, extended to the whole
human race. Cicero, from the Hypsipyle of Euripides, says, "Earth
must be returned to earth," and in the twelfth chapter of Solomon's
Ecclesiastes, there is a passage to the same purport, that "the dust
shall return to the earth as it was, but the spirit to God, who gave
it." Euripides has enlarged on this subject in the character of
Theseus in his Suppliants, "Suffer the dead to be laid in the lap of
the earth; for every thing returns to its original state, the spirit
to heaven, and the body to the earth: Neither of them is given in
plenary possession, but only for a short use: The earth soon demands
back the bodies, to which she had given birth and nourishment." In the
same manner Lucretius calls the earth "a prolific parent and a common
grave." Pliny also describes the earth, as receiving us at our birth,
cherishing our growth, supporting us to the very last, and, when all
the other parts of nature have forsaken us, taking us to her maternal
bosom, and covering us with a mantle.
There are some, who think that the custom of burial was bequeathed
to us by our first parents as a testamentary hope of a resurrection.
For we are instructed by Democritus to believe, that our bodies are
preserved in the earth under the promise of a restoration to life. And
Christians in particular have frequently ascribed the custom of decent
burial to the same hope. Prudentius a Christian poet says, "What can
be the meaning of hallowed rocks, or splendid monuments, except that
they are the depositories of bodies, consigned not to death, but to a
temporary sleep?"
But the most obvious explanation is to be found in the dignity of man,
who surpassing other creatures, it would be a shame, if his body were
left to be devoured by beasts of prey. It is an act of compassion
then, said Quintilian, to preserve the bodies of men from ravages of
birds and beasts. For to be tore by wild beasts, as Cicero observes
in his first book ON INVENTION, is to be robbed of those honours, in
death, which are due to our common nature. And the Roman Poet, makes a
lamentation over one of his heroes, that he had no pious mother to lay
his body in the grave, but he would be left a prey to birds, or thrown
into the river as food for fishes. Aen. x. 557-560.
But to speak from still higher authority, God, by the mouth of his
prophets, threatens the wicked that they shall have burial like that
of the brutes, and that the dogs shall lick their blood. Such a menace
denounced against the wicked, as a punishment, shews that it is an
indignity done to our nature, when, in the words of Lactantius, the
image of God is cast out, to the insults of beasts of prey. But in such
indignity if there was even nothing repugnant to the feelings of men,
still the nakedness and infirmities of our perishable nature should not
be exposed to the eye of day.
Consequently the rights of burial, the discharge of which forms one
of the offices of humanity, cannot be denied even to enemies, whom a
state of warfare has not deprived of the rights and nature of men. For,
as Virgil observes, all animosity against the vanquished and the dead
must cease. Aen. xi. 104. Because they have suffered the last of evils
that can be inflicted. "We have been at war, I grant, _says Statius_,
but our hatred has fallen, and all our enmity is buried in the grave."
And Optatus Milevitanus assigns the same reason for reconciliation. "If
there have been struggles among the living, your hatred surely must be
satisfied with the death of an adversary. For the tongue of strife is
now silenced."
III. Upon the principles advanced above, it is agreed by all that
public enemies are entitled to burial. Appian calls it the common right
of war, with which, Tacitus says, no enemy will refuse to comply. And
the rules, respecting this, are, according to Dio Chrysostom, observed,
even while the utmost rage of war still continues. "For the hand of
death, _as the writer just quoted observes_, has destroyed all enmity
towards the fallen, and protected their bodies from all insult."
Examples to this purpose may be found in various parts of history.
Alexander ordered those of the enemy, that were killed at the battle
of Issus to be honoured with the rites of burial, and Hannibal did
the same to Caius Flaminius, Publius Aemilius, Tiberius Gracchus, and
Marcellus, the Roman Generals. So that you would suppose, says Silius
Italicus, he had been paying these honours to a Carthaginian General.
The Romans treated Hanno, and Pompey Mithridates in the same manner. If
it were necessary to quote more instances, the conduct of Demetrius on
many occasions, and that of Antony to king Archelaus might be named.
When the Greeks were at war with the Persians, in one part of their
military oath they swore to bury all the dead belonging to the ALLIES,
and when they were victorious, to bury even the BARBARIANS. After
a battle, it was usual for both sides to obtain leave to bury the
dead. Pausanias, in his account of the Athenian affairs, mentions the
practice of the Athenians who buried the Medes, regarding it as an act
of piety due to all men. We find from the Jewish writers, that for the
same reason, their high priests, who were forbidden to come near a
dead body, if they found one, were obliged to bury it. But Christians
deemed BURIAL an act of such importance, that they would allow their
church-plate to be melted down, and sold to defray the expences as they
would have done to maintain the poor, or to redeem captives.
There are some few instances to the contrary, but they are reprobated
by the universal feelings of mankind, and such cruelty deprecated in
the most solemn terms. Claudian calls it a bloody deed to plunder the
dead, and still more so to refuse them the covering of a little sand.
IV. Respecting those, who have been guilty of atrocious crimes, there
is reason to entertain some doubt, whether the right of burial is due
to them.
The divine law indeed, that was given to the Hebrews, and which is
fraught with every precept of virtue and humanity, ordered those, who
were crucified, which was the most ignominious kind of punishment that
could be inflicted, to be buried on the same day. Owing to this law, as
Josephus observes, the Jews paid such regard to burial, that the bodies
of those, who were executed publicly as criminals, were taken away
before sun-set, and committed to the ground. And other Jewish writers
are of opinion that this was intended as a degree of reverence to the
divine image, after which man was formed.
To allow burial to criminals must have been the practice in the time
of Homer: for we are told, in the third book of the Odyssey, that
Ægisthus, who had added the crime of murder to that of adultery, was
honoured with funeral ceremonies by Orestes, the son of the murdered
king. It was the custom with the Romans, as may be seen from Ulpian,
never to refuse giving the bodies of criminals to their relatives, to
bury. The Emperors, Diocletian, and Maximian, in a rescript, declared,
that they did not refuse to deliver up, for burial, those, who had
deservedly been put to death for their crimes.
In reading the history of civil wars; we find more frequent instances
of indignities offered to the dead, than in the accounts of any foreign
wars. In some cases, the bodies of executed criminals are exposed to
public view, and hung in chains, a custom the propriety of which is
very much doubted both by Theological and Political writers. So far
from approving of the practice, we find such writers bestowing praises
upon many, who had ordered funeral honours to be paid to those, who
would not themselves have allowed the same to others. An action of this
kind was done by Pausanias the Lacedaemonian, who, being urged by the
people of Aegina to retaliate upon the Persians for their treatment
of Leonidas, rejected the advice, as unbecoming his own character and
the Grecian name. The Pharisees allowed burial even to King Jannaeus
Alexander, who had treated the dead bodies of their countrymen with
every kind of insult. Though indeed on certain occasions, God may have
punished some offenders with the loss of such a right, he did so by
virtue of his own prerogative, which places him above the restrictions
of all law. And when David exposed the head of Goliah, it was done to
one, who was an alien, and a despiser of God, and might be justified by
that law, which confined the name and privileges of neighbour to the
Hebrews.
V. There is one thing not improper to be observed, that the rule
prevailing among the Hebrews with respect to burying the dead,
contained an exception, as we are informed by Josephus, excluding
those, who had committed suicide. Nor is it surprising that a mark of
ignominy should be affixed to those, on whom death itself cannot be
inflicted as a punishment. Aristotle in the fifth book of his Ethics,
speaks of the infamy universally attached to suicide. Nor is the
observation at all weakened by the opinions of some of the Grecian
poets, that as the dead are void of all perception, they cannot be
affected either by loss or shame. For it is a sufficient reason to
justify the practice, if the living can be deterred from committing
actions, for which they see a mark of infamy set upon the dead.
In opposition to the Stoics, and others, who admitted the dread of
servitude, sickness, or any other calamity, or even the ambitious
love of glory to be a just cause of voluntary death, in opposition to
them, the Platonists justly maintain, that the soul must be retained
in the custody of the body, from which it cannot be released, but at
the command of him, who gave it. On this subject there are many fine
thoughts in Plotinus, Olympiodorus, and Macrobius on the dream of
Scipio.
Brutus, following the opinions of the Platonists, had formerly
condemned the death of Cato, whom he himself afterwards imitated. He
considered it as an act of impiety for any one to withdraw himself from
his allegiance to the supreme being, and to shrink from evils, which
he ought to bear with fortitude. And Megasthenes, as may be seen, in
Strabo book XV. remarked the disapprobation, which the Indian sages
expressed of the conduct of Calanus: for it was by no means agreeable
to their tenets, that any one, through impatience, should quit his post
in life. In the fifth book of Quintus Curtius, there is an expression
of King Darius to this effect, that he had rather die by another's
guilty hand than by his own. In the same manner the Hebrews call death
a release, or dismission, as may be seen not only in the Gospel of St.
Luke, ch. ii. v. 19, but in the Greek version of the Old Testament,
Gen. xv. 2, and Numb. xx, towards the conclusion: and the same way of
speaking was used by the Greeks. Plutarch, in speaking of consolation,
calls death the time, when God shall relieve us from our post.
VI. There are certain other rights too, which owe their origin to
the voluntary law of nations, such as the right of possession from
length of time, the right of succession to any one who dies intestate,
and the right resulting from contracts, though of an unequal kind.
For though all these rights, in some measure, spring from the law of
nature, yet they derive their confirmation from human law, whether it
be in opposition to the uncertainty of conjecture, or to certain other
exceptions, suggested by natural reason: points, all of which have been
slightly touched upon in our discussions on the law of nature.
CHAPTER XX.
ON PUNISHMENTS.
Definition and origin of punishment--In what manner punishment
relates to strict justice--The right of punishing allowed by
the law of nature, to none, except to those, who are innocent
of the crimes and misdemeanours to be punished--Difference
of motive between human and divine punishment--In what sense
revenge is naturally unlawful--The advantages of punishment,
threefold--The law of nature allows any one to inflict punishment
upon an offender, yet with a distinction--The regard which the
law of nations pays to the benefit of the injured party, in the
infliction of punishment--General utility of punishments--What
is determined by the law of the Gospel, in this respect--Answer
to the objections founded upon the mercy of God, as displayed in
the Gospel--Capital punishments objected to as cutting off all
possibility of repentance--Not safe for private Christians to
inflict punishments, even when allowed to do so, by the law of
nations--Prosecutions, for certain offences, to be carried on
in the name of the public and not of individuals--Internal acts
not punishable by man--Open acts, when inevitable through human
infirmity not punishable--Actions, neither directly nor indirectly
injurious to society, not punishable by human laws--The reasons
of that exemption--The opinion, that pardon can never be granted,
refuted--Pardon shewn to be allowable before the establishment of
penal law--But not in all cases--Allowable also subsequently to the
establishment of penalties--Internal and external reasons--Opinion,
that there can be no just reason for dispensing with laws, except
where such dispensation can be implied as authorised by the law,
examined and refuted--Punishment estimated by the desert of
the offender--Different motives compared--Motives which ought
to restrain men from sin--Scale of offences according to the
precepts of the Decalogue--Capacity of the offender--Punishment
mitigated from motives of charity, except where there are stronger
motives of an opposite kind--Facility or familiarity of crimes
aggravates their nature--Clemency, proper exercise of--Views of
the Jews and Romans in inflicting punishment--War considered as
a punishment--Whether hostilities can justly be commenced for
intended aggressions--Whether Kings and Nations are justified
in making war to punish offences against the law of nature, not
immediately affecting themselves or their subjects--The opinion,
that jurisdiction is naturally necessary to authorise punishment,
refuted--Distinction between the law of nature, and civil customs,
and the divine voluntary law--The question, whether war can be
undertaken to punish acts of impiety--considered--The being of
God, whence known--Refusal to embrace the Christian religion not a
sufficient cause of war--Cruel treatment of Christians, justifiable
cause of war--Open defiance of religion punishable.
I. In the preceding part of this treatise, where the causes, for which
war may be undertaken, were explained, it was considered in a two-fold
light, either as a reparation for injuries, or as a punishment. The
first of these points having been already cleared up, the latter, which
relates to punishments, remains to be discussed, and it will require a
more ample investigation; for the origin and nature of punishment, not
being perfectly understood, has given rise to many errors.
Punishment taken in its most general meaning signifies the pain of
suffering, which is inflicted for evil actions. For although labour may
some times be imposed instead of punishment; still it is considered
in that case, as a hardship and a grievous burden, and may therefore
properly be classed with sufferings. But the inconveniences, which
men are some times exposed to, by being excluded from the intercourse
of society and the offices of life, owing to infectious disorders,
or other similar causes, which was the case with the Jews on account
of many legal impurities, these temporary privations are not to be
strictly taken for punishments: though from their resemblance to each
other, they are often, by an abuse of terms, confounded.
But among the dictates laid down by nature, as lawful and just, and
which the ancient Philosophers call the law of Rhadamanthus, the
following maxim may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER
EVIL PROPORTIONED TO THAT WHICH HE HAS DONE.
Which gave occasion to Plutarch, in his book on exile, to say that
"justice is an attribute of God, avenging all transgressions of the
divine law; and we apply it as the rule and measure of our dealings
with each other. For though separated by the arbitrary or geographical
bounds of territory, the eye of nature looks upon all, as fellow
subjects of one great empire." Hierocles gives a fine character of
justice, calling it the healing remedy of all mischief. Lactantius in
speaking of the divine wrath calls it "no inconsiderable mistake in
those, who degrade human or divine punishment with the name of cruelty
or rigour, imagining that some degree of blame must always attach to
the punishment of the guilty." What has been said of the inseparable
connection of a penalty with every offense is similar to the remark of
Augustin, "that to make a punishment JUST, it must be inflicted for
some crime." He applies the expression to explain the divine justice,
where through human ignorance, the offence is often undiscoverable
though the judgment may be seen.
II. There are diversities of opinion whether punishment comes under the
rank of ATTRIBUTIVE or that of STRICT justice. Some refer it to justice
of the attributive kind, because offences are punished more or less,
in proportion to their consequences, and because the punishment is
inflicted by the whole community, as it were, upon an individual.
It is undoubtedly one of the first principles of justice to establish
an equality between the penalty and the offence. For it is the business
of reason, says Horace, in one of his Satires, to apply a rule and
measure, by which the penalty may be framed upon a scale with the
offence, and in another place, he observes, that it would be contrary
to all reason to punish with the rack a slave, who deserved nothing
more than the whip. I. Sat. iii. v. 77, and 119. The divine law, as
may be seen from the xxv. Chapter of Deuteronomy, rests upon the same
principle.
There is one sense, in which all punishment may be said to be a
matter of strict justice. Thus, when we say that punishment is due
to any one, we mean nothing more than that it is right he should be
punished. Nor can any one inflict this punishment, but the person,
who has a right to do so. Now in the eye of the law, every penalty is
considered, as a debt arising out of a crime, and which the offender
is bound to pay to the aggrieved party. And in this there is something
approaching to the nature of contracts. For as a seller, though no
EXPRESS stipulation be made, is understood to have bound himself by all
the USUAL, and NECESSARY conditions of a sale, so, punishment being a
natural consequence of crime, every heinous offender appears to have
VOLUNTARILY incurred the penalties of law. In this sense some of the
Emperors pronounced sentence upon malefactors in the following manner,
"you have brought this punishment upon Yourselves." Indeed every wicked
action done by design was considered as a voluntary contract to submit
to punishment. For, as Michael the Ephesian observes on the fifth
book of Aristotle's Nicomachean Ethics, the ancients gave the name of
contract, not only to the voluntary agreements which men made with each
other, but to the obligations arising from the sentence of the law.
III. But to whom the right of punishing properly belongs, is a matter
not determined by the law of NATURE. For though reason may point out
the necessity of punishing the guilty, it does not specify the PERSON,
to whom the execution of it is to be committed.
Natural reason indeed does so far point out the person, that it is
deemed most SUITABLE for a SUPERIOR ONLY to be invested with the power
of inflicting punishment. Yet this demonstration does not amount to
an ABSOLUTE NECESSITY, unless the word superior be taken in a sense
implying, that the commission of a crime makes the offender inferior
to every one of his own species, by his having degraded himself from
the rank of men to that of the brutes, which are in subjection to man;
a doctrine, which some Theologists have maintained. Philosophers too
agreed in this. For Democritus supposed that power naturally belonged
to superior merit, and Aristotle was of opinion that both in the
productions of nature and art the inferior were provided for the use of
the superior parts.
From this opinion there arises a necessary consequence, that in a case
where there are equal degrees of guilt in two parties, the right of
punishment belongs to neither.
In conformity to which, our Saviour, in the case of the woman taken
in adultery, pronounced that whoever of the accusers was without sin,
meaning sins of equal enormity, should cast the first stone. John viii.
7. He said so for this reason, because in that age the manners of the
Jews were so corrupt, that, under a great parade of sanctity, the
most enormous vices, and the most wicked dispositions were concealed.
A character of the times which the Apostle has painted in the most
glowing colours, and which he closes with a reproof similar to what
his divine master had given, "therefore thou art inexcusable, O man,
whosoever thou art that judgest: for wherein thou judgest another thou
condemnest thyself; for thou that judgest doest the same things." Rom.
ii. 1. Applicable to which there is a remark of Seneca's, that "no
sentence, which is passed by a guilty person can have any weight."
And in another place, the same writer observes, that "if we look into
ourselves and consider whether we have been guilty of the offences we
are going to condemn, we shall be more moderate in our judgments."
IV. Another part of our inquiry respects the end proposed by
punishment. For by what has hitherto been said, it was only meant to
shew that in punishing the guilty no injury is done to them. Still
the absolute necessity of punishment does not follow from thence. For
the pardon of the guilty on many occasions has been considered as the
most beauteous feature in the divine and human character. Plato is
celebrated for his saying that "justice does not inflict punishment
for the evils that are done and cannot be retrieved; but to prevent
the same from being done for the time to come." From Thucydides we
find that Diodorus in addressing the Athenians on the conduct of
the Mitylenaeans, advises them "to forbear punishing their avowed
injustice, unless it was probable that the punishment would be attended
with some good effect."
These maxims may be true with regard to human punishments: for one man
being so nearly allied to another by blood, no degree of suffering
should be inflicted, but for some consequent good. But the case is
different with respect to God, to whom Plato injudiciously applies
the above sentiments. For though the divine counsels will undoubtedly
have the good of men in view, as the end of all punishment, yet the
bare reformation of the offender cannot be the sole object. Since the
divine justice, though tempered with mercy must adhere to the truth
of the revealed word, which threatens the wicked with punishment or
destruction.
The honour therefore of God, as well as the example held up to men,
will be a consequence resulting from his punishment of the wicked.
V. A dramatic writer has said that "the pain of an enemy is a healing
remedy to a wounded spirit," in which he agrees with Cicero and
Plutarch: in the opinion of the former "pain is mitigated by the
punishment of an adversary," and in that of the latter "satisfaction is
a sweet medicine to a troubled mind."
But a disposition like this, when stripped of all disguise and false
colouring, will be found by no means suitable to the reasonable soul of
man, whose office it is to regulate and controul the affections. Nor
will that disposition receive any sanction from the law of nature, who
in all her dictates, inclines to unite men in society by good will,
rather than to separate them by cherishing animosity. For it is laid
down by reason, as a leading axiom in her code of laws, that no man
shall do any thing which may hurt another, unless it be for the purpose
of some evident and essential good. But the pain of an enemy considered
solely of such, is no benefit to us, but a false and imaginary one,
like that derived from superfluous riches or things of the same
kind.[53]
In this acceptation revenge is condemned both by Christian teachers
and heathen philosophers. In this respect, the language of Seneca
approaches very near to the perfection of Christian morals. He calls
revenge, in its usual and proper acceptation, a term of inhumanity,
differing from injury only in degree. For retaliation of pain can
be considered as nothing better than excusable sin. Juvenal, after
describing the different tempers, over which revenge exercises the most
powerful dominion, and shewing the amiable characters over which it has
no influence, concludes it to be the pleasure of a little and infirm
mind.
From the preceding arguments it is plain that punishment cannot justly
be inflicted from a spirit of revenge. We proceed therefore to consider
the advantages attending its just infliction.
VI. This seems the most proper place for reviewing those distinctions
in the motives of punishment, which have been used by Plato in his
Gorgias, and by Taurus the philosopher in a passage quoted by Gellius
in the fourteenth chapter of his fifth book. These distinctions seem to
result naturally from the end of all punishment. Plato indeed considers
the amendment of the offender, and the example given to others, as the
two principal motives: but Taurus has added a third, which he calls
satisfaction, and which is defined by Clemens Alexandrinus, to be
repayment of evil, contributing to the benefit of both the aggrieved
and avenging party. Aristotle passing over example as a motive,
confines the object of punishment to the amendment or correction of the
offender. But Plutarch has not made the same omission: for he has said,
that "where immediate punishment follows the execution of a heinous
crime, it both operates to deter others from committing the same crime,
and administers some degree of consolation to the injured and suffering
person." And this is what Aristotle calls commutative justice. But
these matters require a more minute inquiry. We may observe therefore
that there is nothing contrary either to human or divine law, in
punishments, which have the good of the offender, or that of the
injured party, or of any persons whatsoever in view.
The three proper ends are obtained by that kind of punishment, which
some philosophers have called correction, some chastisement, and others
admonition. Paulus the Lawyer, has given it the name of correction;
Plato styles it a lesson of instruction, and Plutarch a medicine of
the soul, reforming and healing the sufferer, while it operates as a
painful remedy. For as all deliberate acts, by frequent repetition,
produce a propensity, which ripens into habit, the best method of
reforming vices in their earliest stage is to deprive them of their
sweet savour by an infusion of subsequent pain. It is an opinion
of the Platonists, repeated by Apuleius, that "impunity and the
delay of reproof are more severe and pernicious to an offender than
any punishment whatsoever," and, in the words of Tacitus, "violent
disorders must be encountered with remedies proportionably strong."
VII. The power of inflicting the punishment, subservient to this end,
is allowed by the law of nature to any one of competent judgment, and
not implicated in similar or equal offences. This is evident as far
as verbal reproof goes, from the maxim of Plautus, that "to bestow
merited reproof upon a friend is useful, upon certain occasions, though
by no means a grateful office." But in all kinds of constraint and
compulsion, the difference made between the persons, who are allowed,
and who are not allowed to exercise it is no appointment of natural
law, but one of the positive institutions of the civil law. For no
such natural distinction could be made, any farther than that reason
would intrust parents with the peculiar use of such an authority,
in consideration of their affection. But laws, in order to avoid
animosities, have, with respect to the authority of punishing, passed
over the common kindred subsisting among mankind, and confined it to
the nearest degrees of relation: as may be seen in many records, and
particularly in the code of Justinian, under the title of the POWER
OF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS. And Cyrus, in
the v. book and viii. chapter of Xenophon's history of the Expedition,
addresses the soldiers to the following purport, "If I punish any one
for his good, I am willing to submit to justice; but would it not be
equally reasonable that parents and masters should submit to justice,
for having corrected children, or the Surgeon be responsible for having
used the incision-knife, where the patient's case required it?"
But this kind of corrective punishment does not extend to death, which
cannot be considered, as a benefit in itself, except INDIRECTLY and
BY WAY OF REDUCTION, as it is called by Logicians, who, in order to
confirm negatives, reduce them to things of an opposite kind. Thus,
in Mark xiv. 21, when our Saviour says, that it were better for some,
they had never been born, so, for incurable dispositions, it is better,
that is would be a less evil, to die than to live; since it is certain
that by living they will grow worse. Plutarch calls such men a pest to
others, but the greatest pest to themselves. Galen says that capital
punishments are inflicted to prevent men from doing harm by a longer
course of iniquity, and to deter others by the fear of punishment,
adding that it is better men should die, when they have souls so
infected with evil, as to be incurable.
There are some, who think that these are the persons meant by the
Apostle John, who describes them as sinning a sin unto death. But as
their arguments are not satisfactory, charity requires that no one
should be deemed incorrigible, except upon the clearest grounds. So
that punishment with such an end in view can only be inflicted for
important causes.
VIII. The benefit accruing to an injured person from the punishment
of an offender consists in his being secured in future against a
recurrence of the same injury from that offender, or from others.
There are three ways of preventing this recurrence--by removing the
offender--by depriving him of the power of doing harm, or lastly by
compelling him to better habits of thought or action, which is the
reformation produced by the punishment already spoken of. It is not
every kind of punishment, which can produce such effects; it must be
open and conspicuous, to operate as an example, that may deter others
from the commission of the same crimes. A vindictive punishment,
inflicted by an injured individual, or by any other person, when it
is restrained by bounds and limitations of this kind, has nothing
unlawful in it considering the law of nature by itself, apart from all
human and divine institutions, and every adventitious circumstance,
that may create a deviation from the primitive dictates of nature. We
have said that it may be inflicted by any other individual, as well
as by the injured person: for it is conformable to nature, that one
man should assist another. But as our judgment is apt to be biassed
by our affections, in cases, where our interest is concerned; since
the formation of families into states, judges have been appointed, and
invested with the power of punishing the guilty, whereby the natural
liberty of personal redress, originally allowed to individuals, was
abolished, or at least abridged. And it is only in places, on the seas
for instance, where no judicial remedy can be obtained, that this
natural liberty continues in force. There is a circumstance related
of Julius Caesar, applicable to this subject. While he was only in a
private station, being taken prisoner by some pirates, after he had
redeemed himself by a sum of money, he applied to the proconsul for
redress. But his application being neglected, he fitted out a certain
number of ships, attacked and defeated the pirates, and ordered them
all to be crucified.
The practice of private individuals, exercising punishment, was the
origin of single combats, so familiar to the Germans before the
introduction of Christianity, and not yet sufficiently laid aside.
We are informed by Velleius Paterculus, in his second book, that the
Germans were surprised to see the forms of Roman jurisprudence, and
those disputes, which they themselves decided by the sword, settled
by law. By the Jewish law, the nearest in blood to the deceased were
allowed to kill a murderer, if taken beyond the places of refuge.
And the Jewish interpreters observe, that in GENERAL the infliction
of punishment, as a retaliation for murder, it intrusted to no hand,
but that of the judge: as it is difficult for an individual in his
own case to moderate his resentment. The same custom of allowing
individuals to avenge their own wrongs prevailed among the ancient
Greeks, as we find from the words of Theoclymenes, in Homer's Odyssey.
But it prevailed most in countries, where public courts of justice were
not established. From hence St. Augustin defines those wars to be just,
which are intended to avenge injuries. And Plato, in his twelfth book
ON A COMMONWEALTH, justifies the prolongation of hostilities, till the
aggressor is reduced to submit to just, and equitable terms.
IX. GENERAL utility which was considered as the third end proposed
by punishment, may be divided into the same number of parts, as the
benefit accruing from thence to individuals. For these are the objects
in view, either to prevent the individual, who has injured one person,
from doing injury to others: an object which can be accomplished only
by removing the offender, disarming him of the means of farther injury,
or by reforming him: or it may be inflicted to deter others from being
allured, by an example of impunity, to commit acts of molestation or
enmity. And the infliction of punishment, for such reasons, is a RIGHT
granted by the law of nature to every individual. Upon this principle,
Plutarch observes in the life of Pelopidas, that good men are designed
by nature for the office of perpetual magistracy, and superiority
belongs to those, in whom the characters of truth and justice unite.
But as it requires a painful degree of patience to examine into facts,
and no inconsiderable share of skill and equity to affix the extent
of punishments; in order to prevent quarrels from arising through the
presuming conceit, which every man entertains of his own wisdom, and to
which others are averse to yield; in all well regulated communities,
it has been usual to select for the tribunals of justice those, who
were deemed worthy of such honour, or likely to become so, from their
integrity and wisdom. Democritus has said, there would have been no
occasion for laws to prevent every man from living according to his own
humour, if one had not done injury to another. For envy was the origin
of strife. But as we have just observed, that it happens, in the case
of revenge, so in this kind of punishment, inflicted for the sake of
example, there are traces and remains of ancient law, in those places,
and among those persons, that are subject to no CIVIL jurisdiction;
and in certain other cases besides. Thus any Hebrew, according to the
customs of that people, if he should turn away from God, or from the
law of God, or should seduce others to false worship, might immediately
be put to death by any one whatsoever. The Hebrews call that an act of
ZEAL, which was first done by Phinehas, and which afterwards became
a custom. Thus Mattathias slew a Jew, who was polluting himself with
Grecian rites. In the same manner, in the book commonly called the
third book of Maccabees, it is related that three hundred other Jews
were put to death by their own countrymen. Nor could any other pretext
be assigned for stoning Stephen, and conspiring against Paul. Philo,
and Josephus abound in instances of this kind. There are many countries
where we may trace the remains of primitive law, in the plenary power
allowed to masters over their slaves, and to parents over their
children, extending even to inflict the punishment of death. So the
Ephori of Sparta might put a citizen to death without the formality of
trial. From what has been said, it is easy to infer what punishment the
law of nature authorises, and how far it has remained in force.
X. We come now to consider whether the law of the Gospel has confined
that liberty within closer bounds. It has been observed in another
part of this treatise, that it is not surprising that some things,
which are allowed by natural and civil law, should be forbidden by the
divine law, owing to its great perfection, and the superiority of its
rewards over any thing that human nature can bestow. To the attainment
of which it is not unreasonable that virtues should be required, far
exceeding the simple precepts of nature. Those kinds of correction that
leave neither any mark of infamy, nor any permanent injury, but are
suited to the age, or other circumstances of the sufferer, if inflicted
by those, who derive such a permission from human laws, for instance
by parents, guardians, or masters, contain nothing repugnant to the
precepts of the Gospel, as may be clearly understood from the nature of
the thing itself. For they are remedies to the mind no less harmless
than medicines ungrateful to the palate are to the body. But as to
revenge the case is different. For the infliction of punishment, only
to gratify resentment, so far from being conformable to the Gospel, has
been shewn above to be repugnant even to the law of nature.
The Jewish law indeed not only forbids the cherishing of hatred against
a neighbour, that is, one of the same country and people, but requires
certain common acts of kindness to be bestowed even upon enemies of
that description. The Gospel therefore, comprehending all men under
the appellation of neighbour, not only forbids us to hurt our enemies,
but commands us to do them good; a commandment clearly stated in the
Gospel of St. Matthew. Yet the law permitted the Jews to seek revenge
for injuries of a more grievous kind, not with their own hands, but
by appealing to the judge. But Christ does not give us the same
permission, as appears from that opposition which he makes between
the permissions of former times, and those of his own law. "You have
heard that it was said an eye for an eye--but I say unto you, love your
enemies, etc."
For although what follows relates peculiarly to the repelling of
injury, and, in some measure, abridges this permission, yet it passes
a much greater censure upon revenge, rejecting it as an indulgence
suitable only to a more imperfect, and carnal state.
To inflict punishment by way of retaliation was disapproved of even by
those of the Jews, who were distinguished for their worth and wisdom;
because they regarded not only the LETTER, but the PURPOSE and SPIRIT
of the law. This appears from Philo, in whose writings we find the
Jews of Alexandria, upon the calamity of Flaccus, their persecutor,
addressing themselves to God in the following language, "We do not
rejoice, O Lord, in the calamity or punishment of an enemy, being
taught by thy holy laws to feel for the miseries of men." And in this
case we may apply that general command given by Christ to forgive
all who have offended or injured us, that is, neither to do, nor to
wish them evil, through resentment of the evil they have done to us.
But what can be said of revenge, not as regarding the past, but as
providing security for the future? Here too Christ requires of his
followers the same disposition to pardon injuries, particularly, if the
offender shews any probable signs of repentance. Luke xvii. 3. Eph.
iv. 32. Col. iii. 13. In those passages a full remission is intended,
such a remission as restores the offender to his former situation of
friendship or confidence: and consequently nothing can be required of
him under the name of punishment. Besides, if there were no such marks
of repentance, the reparation of a loss is not to be pursued with too
much rigour; a doctrine inferred from the precept of Christ enjoining
us to give up the garment along with the cloak.
But if it is likely that connivance at an offence will be attended
with imminent inconvenience and even danger to ourselves, we should be
contented with such securities as may be effectual, and at the same
time operate with as little prejudice as possible to the offender.
For even among the Jews, the law of retaliation was not in use, as we
are informed by Josephus, and other writers of that nation. But in
addition to the expence incurred, which the law treats of as a separate
point, the injured party usually received a pecuniary fine instead of
retaliation; the repayment of expences being considered simply as a
restitution, and not a penalty.
It remains now to consider punishment, as providing for the PUBLIC and
not INDIVIDUAL security, which is accomplished either by removing the
guilty person out of the way or by restraining him from doing farther
mischief, or by deterring others through the severity of example, none
of which means it has been clearly proved were abolished by Christ; for
in giving his precepts he affirmed that he destroyed no part of the
law. The law of Moses indeed, which in these respects was to remain
in force as long as the Jewish Polity existed, strictly enjoined
magistrates to punish murder and other similar crimes. But if the
precepts of Christ could exist in conjunction with the law of Moses,
as far as it imposed capital punishments, surely they may exist in
conjunction with human laws, which in this respect are but an imitation
of the divine laws.
XI. Some, in support of an opposite opinion, allege the supreme mercy
of God, as it is displayed in the new covenant, and which is given as
an example for men, and for magistrates, in particular, to follow,
who, in the exercise of authority, execute the laws of the Deity. This
opinion may in some measure be true, but not to that extent, which the
authors of it intend. For the great mercy of God displayed in the new
covenant has a peculiar reference to offences against the primitive
law, or even against the law of Moses, before the time that men had
received a knowledge of the Gospel. For offences committed after the
promulgation of the Gospel, especially if they are accompanied with a
hardened obstinacy, are treated with much severer judgments than any
that were declared by Moses. For God punishes sins of that kind not
only in a future state, but in the present life. But for sins of that
kind, to obtain the act of mercy and indulgence, the offender must
inflict punishment upon himself, not in a slight or trivial manner, but
with a heartfelt sorrow, and resolution to sin no more.
In the same manner it is maintained that if men are actuated by
repentance, they are ENTITLED to impunity. We do not say that men are
never actuated by sincere repentance; but it is not every kind of
avowal or acknowledgment, by which God is moved to remit the WHOLE of
a punishment, as appears from the case of David. As the supreme judge
therefore might dispense with the full penalty of the law, inflicting
death, and yet exercise no inconsiderable severity upon offenders, so
now he may dispense with the sentence of eternal death, at the same
time leaving the sinner to find an early grave by the stroke of some
calamity, or by the hand of human justice.
XII. and XIII. Another objection made against capital punishments is
that such a kind of sentence and execution is cutting off a criminal
from all possibility of repentance. But those, who make the objection,
must know, that in cases of that kind, venerable and upright judges
use the greatest precautions, and suffer no one to be hurried away to
execution, without a reasonable time allowed for reflection and deep
abhorrence of his crime: a repentance, which though prevented by the
interposing hand of death from producing the fruits of righteousness,
we have reason to suppose, from the case of the thief pardoned on the
cross, may be accepted with God.
But if on the other hand it be said that longer life might have been of
more avail to serious repentance, we may observe that, in some cases,
the reply of Seneca may be made, that to men of that description death
is often the greatest blessing which can be bestowed; for, in the words
of Eusebius, their career of wickedness cannot otherwise be shortened,
or reformed. These in addition to the preceding arguments in the former
part of this treatise may be deemed a sufficient answer to those, who
assert that all capital punishments, and even all punishments, without
exception, are abolished by the precepts of our Saviour. The Apostle,
consigning to the office of kings the use of the sword, as an exercise
of his divine commission to avenge all wrongs, instructs us to pray for
kings, that, as true Christians, in their royal capacity, they may be a
protection to the innocent. An end, which even after the introduction
of the gospel, could not easily be obtained, owing to the depravity of
mankind, if the violence of some were not restrained by the exemplary
punishment of others. Such authority is the more necessary, when even
in the midst of so many examples and punishments, the lives of the
innocent are scarcely secure. There have been indeed, it cannot be
denied, happy instances where the sentence of death was changed for
that of perpetual labour, a practice, as we are informed by Diodorus,
followed by Sabacon, king of Egypt, a prince renowned for his piety.
Balsamon observes that the penal laws of Rome, inflicting death, were
most of them changed by the Christian emperors of later times, and
other kinds of punishment were substituted, that the guilty might
receive deeper impressions of repentance, and their punishment operate
as a more durable example.
XIV. From what has been said, it may be inferred, how unsafe it is for
a private Christian, whether from motives of personal interest, or from
those of the public good, to take upon himself the punishment of an
offender, and particularly to inflict death. Although, as it has been
said before, it may, IN SOME CASES, be allowed by the law of nations. A
permission, that has given rise to the laudable practice, prevailing in
some countries of furnishing adventurers with public instructions and
commissions to chase and capture pirates, wherever they may be found.
But those adventurers may be considered as discharging a public duty
rather than as acting upon their own authority.
XV. A custom not unlike to which prevails in many places, of not
allowing individuals to bring criminal charges against others at their
own pleasure: that office belonging to persons invested with public
authority to undertake it. So that no one can contribute towards
shedding the blood of another, but as an act of necessary duty. In
reference to this custom, a canon of the council of Eliberis excluded
from the communion any believer who had been instrumental in causing
the proscription or death of another.
XVIII.[54] It is proper now to consider whether all wicked acts are of
that kind, which are punishable by human laws. In reply to which we
may answer that they certainly are not.--In the first place, mere acts
of the mind, or criminal intentions, though by subsequent confession,
or some other accident, they may come to the knowledge of others, are
not punishable by human laws. Because, as it was proved in a former
part of this treatise, it is not consonant to the law of nature, that
INTENTIONS ONLY should give rise to any right, or obligation amongst
men. And in this sense the maxim of the Roman law is to be taken, THAT
NO ONE DESERVES PUNISHMENT FOR MERE THOUGHTS. Yet this does not prevent
intentions, when they have an influence upon the conduct, from being
considered as actual deeds, and equally deserving of punishment.
XIX. In the second place, even outward acts, cannot be punished by men
where they arise through some inevitable infirmity of human nature. For
although there can be no sin, except where there is a freedom of will,
yet to be at all times free from all infirmity and sin, is more than
can be expected from the condition of man. So that Sopater, Hierocles
and Seneca among the Philosophers; Philo among the Jews; Thucydides
among the historians; and innumerable writers among Christians have
maintained that sin is interwoven with our very nature. Nay indeed, a
doubt may be entertained whether such acts can rightly and properly
be called sins. For though seeming to be voluntary actions, they will
be found, when minutely considered, not to proceed from a free and
deliberate exercise of the will. "Laws, _says Plutarch in the life of
Solon_, should be framed to suit possible cases, the legislator may
obtain every beneficial end by punishing a few offenders, where the
indiscriminate punishment of multitudes would be attended with no good
effect."
There are some actions, which though not imputable to human nature
itself, are inevitable consequences of the influence of bodily habits
on the mind. Actions like these are punishable in human courts, owing
to the criminality of voluntary contracting, or of not sufficiently
guarding against, those habits.
XX. In the third place, human courts of justice cannot take cognizance
of those offences, which neither directly nor indirectly, affect the
public or individuals. For no reason can be assigned, why such offences
should not be left to the judgments of God, whose all-seeing eye must
know them, whose equity will weigh them, and whose power can punish
them. It would be unnecessary therefore, and presumptuous in human
tribunals to assume such decisions. However we must except from this
rule those corrective kinds of punishment, designed for the reformation
of offenders, even where their conduct is no way injurious to others.
Neither are those actions punishable, which are directly opposite to
the virtues of compassion, liberality, or gratitude, in the performance
of which virtues natural justice allows of no compulsion.
XXI. The point, necessarily to be considered next, is the opinion,
whether it is lawful some times to grant pardon. For the Stoics
maintain it not to be lawful, as may be seen from a fragment in
Stobaeus, under the title of MAGISTRACY, from Cicero's speech for
Murena, and towards the conclusion of Seneca's books on Clemency; but
their arguments are fallacious, and unsubstantial. They say "that
pardon is the remission of a penalty, that OUGHT to be paid; but a wise
man does every thing, which he OUGHT to do." Here the fallacy lies in
the use of the word OUGHT. For if it means that an offender owes a
penalty, that is, that he may be punished without injustice, it will
not necessarily follow that the person who does not punish him, is
doing what he ought not to do. But if the word be taken to imply that
a good man, or a wise man, ought at all events, to exact the penalty,
it may be observed in reply that THIS does not always happen, and
therefore, in this sense, the penalty or punishment may be considered,
not as a debt, but only a permission. And this will hold good, both
before and after the establishment of penal laws.
XXII. Before the establishment of penal laws, punishment, beyond
all doubt, might be inflicted; because by the law of nature, every
offender made himself subject to punishment; but it is not a natural
and inevitable consequence of its being lawful, that it should be
enforced. For this depends upon the connection between the ends, for
which punishments were established, and the punishments themselves. If
the ends proposed therefore are not immediately necessary, in a moral
point of view, or if other ends of a different kind, but not less wise
and salutary should be devised, or that the ends originally designed
may be obtained by some other means, in all these cases, the right of
punishment may be saved, there being no immediate occasion to inflict
it. Thus for instance, where an offence is known to very few, there can
be no immediate occasion for a public punishment, by way of exemplary
exposure, which in some cases might be even injurious to society rather
than productive of advantage. Upon which Cicero in a letter to his
brother makes a pertinent remark, respecting one Zeuxis, observing,
that "had he once been brought into court, he could not have been
released, but there was no necessity that a search should be made for
him, in order to bring him to trial."--In the next place the right and
end of punishment may be dispensed with, where a man's own services, or
those of his family are sufficient to outweigh the consideration of his
offences. "For, _in the words of Seneca_, an act of kindness eclipses
the fault of an injury."--And in the last place, where reproof operates
upon an offender, as a means of correction and amendment, or where the
injured party is satisfied with an acknowledgment of the offence, the
occasion for punishment is done away. It was this motive to clemency,
which the son of David had in view, where he observes that it behoves
the righteous to be merciful. For as all punishment, especially of the
more severe cast, has in it some thing, which tho' not repugnant to
justice, is at variance, at least, with charity, reason easily suffers
us to forbear inflicting it, unless that forbearance is opposed by some
weightier, juster, and more undeniable motive of charity.
XXIII. Cases may occur where it is absolutely necessary to inflict
punishment, as upon notorious, and atrocious criminals, or where it
is for the public good, to dispense with that severity, or where
the judicial authorities may use their own discretion in mitigating
or enforcing the sentence of the law. Upon which Seneca pertinently
remarks, that the exercise of lenity should always be an act of free
deliberation. As to the disputes of the Stoics on these points, they
are, in the opinion of Cicero and others, debates upon words rather
than things: consequently they are less worthy of philosophical
contemplation.
XXIV. There seems to be a greater difficulty in deciding what is to
be done, subsequently to the establishment of penal laws; because a
legislator is bound, in some measure, by his own laws. But this, as it
was proved in a former part of this treatise, is only true with respect
to the legislator, in his individual capacity, as a private member of
the state, but not in his public character, in which he represents
the whole Majesty and Authority of the state itself. As such, he can
entirely repeal the law: for it is the nature of all human laws, to
depend upon the will of the maker, not only for their origin, but also
for their duration. Yet a lawgiver ought not, upon trivial grounds, to
repeal a statute, for, in so doing he would be acting against the rules
of sovereign justice. But as the legislator has power to repeal the
whole of a law, so in the case of some particular person, or individual
action, he may relax its rigour, allowing it to remain in other
respects, as it stood before. As an example of this, the actions of
the Deity may be cited, who, according to the testimony of Lactantius,
in enacting his laws, did not deprive himself of the exercise of his
mercy, to grant pardons. "The Emperor, _says Augustin_, may recall
his sentence, pardon and release a criminal; because, _as he further
explains it_, the person who has power to make laws, is not INVARIABLY
bound to observe them." Yet this privilege of departing from the letter
must never be used but for the most important reasons. Although such
reasons cannot be precisely defined, yet it is certain that, since the
establishment of civil law, more weighty ones are required to authorise
such pardons, than before that period. Because punishments have derived
an additional sanction from the authority of the law, which ought to be
respected and observed.
XXV. The reasons for releasing any one from the penalties of the law,
are of two kinds, either internal or external.
An internal reason, to justify a departure from the sentence of the
law, must be one, where the punishment is severe when compared with the
offence.
XXVI. An external reason is one arising from some favourable
circumstance in the character of the offender, or some fair hopes that
may be entertained of his future conduct. And these reasons will have
the most weight in cases, where the particular motives for making the
law cease to operate. For although a general reason, unopposed by any
other of a weightier kind, may sufficiently authorise the enaction of
a law; yet where the peculiar reason, for which that law was made, has
ceased to exist, the relaxation of it, or even a total dispensation
will be attended with less danger to the universal authority of law in
general.
Such a dispensation indeed is most allowable, where an offence has been
committed through ignorance, though the party so committing it is not
entirely free from blame, or through some invincible infirmity of mind,
in all which cases, a Christian ruler will have an eye to the example
of God, who, under the old covenant, appointed many such offences
to be atoned for by certain expiatory offerings: Levit. iv. and v.:
and, in the New Testament, he has expressly declared his intention to
pardon such offences, upon due repentance. Luke xxiii. 34.; Heb. iv.
15. and v. 2.; 1 Tim. 1. 13. And Chrysostom observes, that Theodosius,
impressed with those words of our Saviour, "Father, forgive them, for
they know not what they do," was led to grant a pardon to the people of
Antioch.
XXVII. And hence it is evident, how mistaken Ferdinand Vasquez is
in his judgment, when he maintains that there can be no just reason
for dispensing with a law, that is, for releasing any one from
its obligations, except where the lawgiver, upon being consulted,
expressly declares that he never intended it should be observed to
its full extent. For he does not make the proper distinction between
an equitable interpretation, and the entire relaxation of a law. For
which reason, in another place, he reproves Thomas, and Sotus, because
they say that a law is binding although the particular reason of its
being made may have ceased, as if they supposed that the mere letter of
the law was the source of its obligation, an opinion which they never
did entertain. So far from every relaxation coming under the idea of
equity, properly so called; those relaxations may be freely granted
or refused, which could not be done in matters of equity, to which
even acts of charity or those of reasonable policy do not strictly
belong. For there is a great difference between the repeal of a law
upon fair or urgent grounds, and a legislator's declaring that at the
time of passing the law he had not the particular offence or case in
contemplation.
Having thus far considered the nature of dispensations, we proceed to a
review of the merits upon which they may be granted.
XXVIII. From what has been said above, it appears that in punishments,
two things are to be regarded, the offence, and the object for which
they are inflicted. It is consonant to justice that no one should
receive greater punishment than he deserves; upon which Cicero, in
one of his letters, observes, that, "the same moderation, which is
commended in all other things, ought to be observed in punishments."
Papinian therefore calls punishment an estimation of demerit; but this
equality established between crime and punishment, says Demosthenes in
his Letter in behalf of the children of Lycurgus, is not the only thing
to be considered: the object and intention also of the delinquent must
be weighed and taken into the account. But, if care be taken to inflict
no more punishment than is due for an offence; it may be greater or
less, in proportion to the utility to be derived from thence.
XXIX. In examining the different degrees of guilt, we ought to take
into the account the motives which impelled the offender to commit the
act--the motives, which ought to have restrained him therefrom, and how
far he was capable of yielding to either. Scarce any one does a wicked
action without some motive, or so far strips himself of the nature of
man, as to delight in such acts from pure malignity. Most men are led
away by the indulgence of their appetites, which engender sin. Under
the name of appetite also may be comprehended the strong desire of
avoiding evil, which is the most consonant to nature, and therefore to
be reckoned amongst the most laudable of all desires. So that offences
committed for the sake of avoiding death, imprisonment, pain, or
extreme want are generally deemed the most excusable.
Which gave occasion to Demosthenes to say, "that we are justly more
exasperated against those, who, abounding in riches, commit evil
actions, than against those, who are impelled by want to do the same.
Humane judges are always ready to make allowance for necessity: but
where wealth is united with injustice, no pretext can be pleaded in
excuse." On this score, Polybius excuses the Acarnanians, for having
neglected, when threatened with impending danger themselves, to fulfil
the terms of a defensive treaty made with the Greeks against the
Aetolians.
Besides the desire of avoiding evil there are other desires tending
to some good, either real or imaginary. Real advantages, considered
apart from virtues, and those actions, which have a virtuous tendency,
are either such as give delight themselves, or, like abundance of
riches, can procure those things, which administer to pleasure. Among
advantages purely imaginary, we may reckon that of desiring to excel
others, from a spirit of rivalry, rather than from any laudable
intention, or the power of gratifying resentments, which the farther
they deviate from natural justice the more shocking they are to natural
feeling. These appetites the Apostle has described in terms of marked
censure, calling them, the "lust of the flesh, the lust of the eye, the
pride of life." Here the first member of the sentence expresses the
love of pleasure, the second implies the insatiable love of riches,
and the third comprehends the pursuit of vain glory, and the desire of
revenge.
XXX. The very injustice of all offences ought to be a GENERAL motive
with men, to restrain them from the commission of them. For at present
we are not considering sins of any kind, but those, which extend
their consequences beyond the offender himself, and affect others.
And injustice is the more heinous and criminal in proportion to the
greatness of the injury, which it inflicts.
In the highest rank of crimes and misdemeanours therefore, we may
place those, which are carried into complete execution: and lower in
the scale we find those criminal designs, which have proceeded some
degrees, but not to the last stage of completion. For the aggravation
of a criminal intent is measured by the length to which it goes. In
either class that kind of injustice is most notorious, which tends to
disturb the common peace of society, and therefore is injurious to
greater numbers. Private wrongs follow in the next degree. The greatest
of which are those affecting life, and very great, though somewhat
inferior in the degrees of enormity, are those, that disturb the peace
of families, which is founded on the marriage-contract. And the last
description of wrongs are those affecting the property of individuals,
either by taking it with open violence, or obtaining or injuring it by
fraudulent means.
Some are of opinion that a more accurate order of division might have
been used; but that which is here followed is the same used by God
himself in the delivery of his commandments. For under the name of
parents are included not only those, who are naturally such, but
sovereign princes, magistrates, and rulers of every description, whose
authority is the key-stone of the fabric of society. Next follows the
prohibition of murder; the prohibition of adultery, as a violation of
the marriage bond; the prohibition of theft, and false evidence: and
the catalogue of offences concludes with the prohibition of criminal
desires. Among the immediate causes to restrain the commission of a
crime, not only the cruelty of the act itself, but all the remote and
possible consequences should be taken into the account. If a fire is
begun, or the barriers, that keep out the waves, are broken down, the
perpetrator brings upon his own head the blood of thousands, and all
the guilt of that ruin by which they perish.
In addition to the general characters of injustice above described, we
may annex the crime of being undutiful to parents, unkind to relatives,
or ungrateful to benefactors, which are each of them a violation of
natural, and in some respects of civil law. The repetition of these
offences too aggravates their enormity: because wicked habits are
sometimes worse than wicked actions. Hence we may comprehend the
natural justice of that rule, which the Persians followed, comparing
the past life of an offender with his present transgression. And this
ought to have some weight in cases where a crime does not originate
from habit, but from a momentary occasion. But not so, where a course
of former rectitude has been changed into an unvaried course of
wickedness. For in such cases, God himself has declared by the mouth
of his prophet Ezekiel, that he has no regard to the former life.
Even profane writers have the same clear views upon the subject; for
Thucydides observes, that degeneracy from a righteous to a wicked
course incurs double punishment: for offences are least pardonable in
those, who know the difference between right and wrong. In this respect
all praise and admiration are due to the wisdom of the primitive
Christians, who, in estimating the magnitude of offences, weighed
the preceding and the subsequent conduct of a transgressor against
the action, for which he was to be punished, as may be seen from the
council of Ancyra, and other councils. It heightens the enormity of an
offence, where it is committed in violation of an express prohibition
of the law. For, in the language of Tacitus, "the fear of prohibition
may sometimes operate as a restraint, but where men once act in
defiance of that, fear and shame have lost all their force."
XXXI. The capacity of the person too, with respect to judgment,
disposition, age, education, and every other circumstance must be taken
into consideration, when we look for resistance, or submission to the
suggestions of wicked inclinations. The thought of immediate danger
augments fear, and recent, unallayed pain inflames anger; so that in
either case the calm dictates of reason cannot be heard. Offences
therefore springing from the influence of such impressions, are of a
less odious complexion than those arising from the love of pleasure,
or the indulgence of hatred. Because there is less excuse for actions
of the latter kind, the delay, or total forbearance of which could
occasion no serious inconvenience. For it must always be kept in
mind, that where there are more powerful impediments to the exercise
of judgment, and more urgent persuasives to natural feeling, the
criminality of an offence is proportionably softened. And these are the
rules for measuring the degrees of pardon or punishment.
XXXII. The Pythagoreans maintain that justice lies in proportioning
the punishment to the offence: a rule which cannot be admitted to
the full extent of requiring an aggressor to suffer nothing more
than a bare requital of the injury he has occasioned. For this is at
variance with the most perfect laws, which in cases of theft sometimes
require fourfold, and sometimes fivefold restitution to be made. And
the Athenian law, besides compelling a thief to pay double the value
of what he had taken sentenced him to many days' imprisonment. Among
the Indians, as we are informed by Strabo, the person, who had maimed
another, was condemned, in addition to the penalty of retaliation, to
lose his hand. Nor is it right, as Philo, in explaining the punishment
of murder, justly observes, for the suffering of an innocent and guilty
person to be exactly the same. And hence it is easy to see why certain
crimes not carried into actual execution, and therefore less injurious
than those, which are so, are punished only proportionably to the
design.--In this manner false witnesses were treated by the Jewish law;
and by the Roman law, those who walked ready armed to commit murder.
Consequently a greater degree of punishment is due, where the criminal
intention is completed. But as death is the severest punishment that
can be inflicted, and one that can never be repeated; the sentence of
all human law rests there: though by the custom of some countries death
is accompanied with torture, in cases of extreme atrocity.
XXXIII. In many instances, the magnitude of a punishment can only be
measured by the situation of the person on whom it is to be inflicted.
Thus a fine imposed upon the poor would be a heavy sentence, though
it would scarcely affect the rich; and a man of high rank would feel
the weight of a disgrace, that would but lightly touch an ignoble
person. Such distinctions are frequently used by the Roman law, often
degenerating into acts of partiality; a fault from which the law of
Moses is entirely free. And the above rules may be considered as the
scale for estimating the different degrees of punishment.
XXXIV. Though punishment does not exceed the bounds of justice, yet in
certain cases it may be mitigated in favour of a criminal, from motives
of mercy, except where such lenity to the guilty is deemed cruelty to
the innocent, whose safety is thereby endangered. For the escape of a
criminal is often an encouragement to his own perseverance in iniquity,
and to that of others, who are encouraged by the example. Necessity
indeed requires the sharpest remedies for the suppression of crimes;
especially, where the incentives of habit and a facility to commit them
prevail.
XXXV. The divine law given to the Hebrews punished the stealing of
cattle from a pasture with more severity than breaking into a house,
on account of the ease with which the former of those crimes might
be committed. Exod. xxii. 1-9. Justin in speaking of the Scythians,
describes them as "punishing theft with more severity than any other
crime; for as they have no covered habitations to protect their flocks,
and herds from depredations, what could be safe, if thieving were
allowed?" Though the FAMILIARITY of certain crimes may prevent us from
being surprised at their perpetration, it by no means diminishes their
atrocity, or demands a mitigation of punishment. But, as Saturninus
says, "the giant-strides of crimes must be impeded with the strongest
bands." In trials for offences, clemency may be indulged, but in the
passing of laws severity should be regarded: For the GENERAL nature
of law requires that offences should be pursued with rigour: but in
trials, in which individuals are the objects concerned, there may be
circumstances to aggravate or diminish the offence: which leaves room
for the discretionary exercise of rigour or lenity.
XXXVI. and XXXVII. The inclination to mitigate penalties, where
the urgent motives to enforce them no longer exist, is a point of
compassion perfectly distinct from the abolition of punishment
altogether.
Nor has any thing been omitted, that might tend to clear up this
difficult and delicate question. But every point, we trust, has been
examined in its proper place, either respecting the magnitude of
crimes, as measured by the injury done, the habitual commission of such
offences, or the influence of the motives, sufficient to encourage or
restrain them. Indeed the character of the offender affords the most
conclusive means for judging of his capacity to commit the crime; and
that of the sufferer often contributes something towards enabling us
to estimate the due proportion of the penalty. The circumstances of
the time, when--the place, where--or the facility, with which a crime
is perpetrated, tend to aggravate, or lessen its enormity. The length
of time intervening between a criminal design and its execution gives
us some opportunity to examine how far the perpetrator was actuated
by a malicious purpose. But the true complexion of a crime is to be
discovered, partly from the nature of those appetites, to which it
owes its birth; and partly, on the other hand, from the nature of the
motives which ought to have restrained them. By this class of appetites
the magnitude of a crime may be judged of; and the consequences are the
motives which should operate to restrain them.
XXXVIII. It has been shewn before, and it is a truth founded upon
historical fact, that wars are undertaken, as acts of punishment, and
this motive, added to that of redress for injuries, is the source, from
which the duties of nations, relating to war, take their rise. But it
is not every injury, that can be construed into a just ground of war.
For laws, whose vengeance is meant to protect the innocent, and to fall
upon the guilty, do not regard every case, as a sufficient warrant for
their exertion. So that there is much truth in the opinion of Sopater,
who says that there are trivial and common offences, which it is better
to pass over unnoticed, than to punish.
XXXIX. The maxim laid down by Cato, in his speech in defence of the
Rhodians, that it is not right any one should be punished upon the
bare suspicion of his having intended to commit aggression or injury,
was well applied in that place; because no positive decree of the
people of Rhodes could be alleged against them, nor was there any other
proof beyond the CONJECTURE of their wavering in their policy. But this
maxim is not universally true.
For where intention has proceeded to any outward and visible signs of
insatiable ambition and injustice, it is deemed a proper object of
jealousy, and even of punishment. Upon this principle, the Romans, as
may be seen from Livy's account in the xlii. book and xxx. chapter of
his history, thought themselves justified in declaring war against
Perseus, King of Macedon, unless he gave satisfactory proof, that he
had no hostile intentions against them, in the naval and military
armaments, which he was preparing. And we are informed by the same
historians, that the Rhodians urged it as a rule established by the
laws and customs of all civilized states; that if any one wished the
destruction of an enemy, he could not punish him with death, unless he
had actually done something to deserve it.
But it is not every unjust design, though indicated by some outward
act, which can authorize and direct hostilities. For if the actual
commission of crimes and aggressions is, in some cases, proper to be
overlooked, much more will it be a mark of deliberate caution to use
the same forbearance, where nothing further than the pure design of
aggression appears. A forbearance which Cicero justifies upon the
possibility that the enemy may have repented of his design, before the
execution of it. No conclusive inference can be drawn from the severity
of Mosaic Law against all intended acts of impiety and murder. For, in
comparing human laws with the divine counsels, whose depths we cannot
sound, we are liable to run into error; and the impulse of anger,
where it is attended with no fatal consequence, is a case in which the
infirmity of human nature calls for pardon. For altho' the precepts of
the decalogue are designed to lay a restraint upon unlawful desires
as well as upon unlawful actions, yet in addition to the spiritual
sense, that which is called the carnal, or external commandment applies
to those dispositions that are manifested by some open act. This
interpretation may be deduced from a passage in the gospel of St. Mark,
c. x. 19, where the prohibition to defraud is immediately preceded by
the injunction not to steal. So that intended aggressions are not to be
punished by force of arms, except in cases of atrocity, where the very
design threatens consequences of the greatest danger. All punishment
therefore must have in view either security against future aggressions,
reparation for the injury done to national or private honour, or it
must be used as an example of awful severity.
XL. It is proper also to observe that kings and those who are possessed
of sovereign power have a right to exact punishment not only for
injuries affecting immediately themselves or their own subjects, but
for gross violations of the law of nature and of nations, done to other
states and subjects. For the liberty of inflicting punishment for the
peace and welfare of society, which belonged to individuals in the
early ages of the world, was converted into the judicial authority of
sovereign states and princes; a right devolving upon them not only
as rulers of others, but as subject to the controul of no earthly
power. For that is a right, which can belong to no subject. It is
never safe to leave the entire assertion of a man's own rights, or
the punishment of his wrongs, to his own judgment; for he cannot be
entirely disinterested in his own cause. Partiality will make him fall
short of, or prejudice will make him exceed the bounds of justice. It
was the theme of praise bestowed upon the heroes of antiquity, that
in their most arduous undertakings they avenged the wrongs of others
rather than their own. Upon this principle there can be no hesitation
in pronouncing all wars to be just, that are made upon pirates, general
robbers, and enemies of the human race. So far this opinion agrees
with that of Innocentius and others, who maintain all war to be lawful
against those who have renounced the ties and law of nature. An opinion
directly the reverse is held by Victoria, Vasquez, Azorius, Molina,
and others, who deem an aggression done to a prince, his government,
or his subjects, or civil jurisdiction over the aggressor, the only
justifiable warrant for inflicting punishment, particularly the
punishment of hostilities. For they suppose punishment to be an effect
purely arising from the authority of civil law, whereas, according to
the proofs established in the beginning of this treatise, it was shewn
to be a right resulting entirely from the law of nature.
If the opinion of those, from whom we differ, be admitted, no enemy
will have a right to punish another, by the prosecution of a just war;
a right, which notwithstanding is allowed and confirmed by the practice
of all nations, not only after the defeat of an enemy, but during the
continuance of a war; and that too, not from any civil jurisdiction,
but from a natural right, which prevailed long before the foundation of
states, and which still exists in all its force, in places, where the
community consists of families distinct, and united as the subjects of
one sovereign.
XLI., XLII., XLIII. But certain precautions are necessary to prevent
us from being carried away by an opinion that civil customs, though
founded upon just reasons, and received among many nations, are to be
reckoned as a part of the law of nature. And in the next place, it is
necessary to guard against enumerating as prohibitions of natural law,
things which are not proved to be so, as certain kinds of marriages the
taking of interest for the use of money, and other positive injunctions
of the divine, or Mosaic law. The third rule is, to make an accurate
distinction between general principles, such as the duty of living
according to the dictates of reason, and those of a more particular
though not less obvious meaning; as the duty of forbearing to take what
belongs to another. To which many truths may be added though not quite
so easy of apprehension: among which may be named the cruelty of that
kind of punishment, which consists in revenge, delighting in the pain
of another. This is a method of proof similar to that which occurs in
mathematics, the process of which rises from self-evident truths to
demonstrations, the latter of which, though not intelligible to all
alike, upon due examination obtain assent.
As then in matters of civil law, ignorance is deemed an excuse, so with
respect to the law of nature, wherever infirmity of understanding forms
an invincible obstruction to the knowledge of its rules, such infirmity
may be alleged as a vindication. For as, in cases of unavoidable
ignorance a great degree of the guilt of sin is removed; so it is in
some measure softened wherever this ignorance subsists, though it may
be owing to former negligence. And for this reason, Aristotle compares
barbarians, in their rude, unformed state, to persons, whose appetites
are rendered sickly by disease. Plutarch also observes that there are
certain infirmities and disorders, which naturally infect the soul.
Once for all, by way of conclusion we may add that wars undertaken
to inflict punishment may be suspected of injustice, except there be
manifest and enormous aggressions, with other conspiring causes, to
vindicate nations for having recourse to arms.
XLIV. The progress of the work has necessarily led to the consideration
of offences against God; the propriety or impropriety of punishing
which by force of arms is a fit subject of inquiry.
Admitting the affirmative part of the question, we may observe that as
in ecclesiastical affairs Bishops are intrusted with a Catholic, or
general power; so kings, besides the care of their own immediate states
and subjects, may be regarded as protectors of the human race. The best
argument, on the negative side of the question, against the justice of
such wars, is the sufficiency of the divine omnipotence to avenge its
own wrongs. Yet the same may be said of other offences. For the Deity
possesses sufficient power to punish them, although he leaves them
to the sentence of human tribunals. Some will urge and maintain that
other kinds of offences are punished only in cases, where others are
uninjured or endangered by the commission of them. On the other hand,
it may be said that men punish not only offences, which directly hurt
others, but even those, which affect them indirectly, as suicide and
other similar crimes.
Although religion is a concern between the soul of man and his
Maker alone, its influence on human morals is of no inconsiderable
importance. So that Plato had reason to call it the bulwark of
authority and law, and the bond of every thing venerable in social
order and discipline. Every false opinion in divine things, says
Plutarch, is pernicious, betraying itself in the disorders of the
imagination, wherever it takes root, and springs up into action. So
that Aristotle reckons the care and support of religion the first of
public concerns. This is a truth applying not to any particular state,
but to all governments, and to human society in every shape. An avowal
which Xenophon makes the characteristic of a great and wise prince,
attributing to Cyrus a declaration of his firm persuasion that the more
his subjects feared God, the more obedient he should find them to his
laws, and the more attached to his person. But once remove the motives
of religion, says Tully, and you destroy faith, the intercourse
between man and man, and justice the most excellent of all virtues.
The opinions of Epicurus afford a sufficient proof of this: for in
banishing the providence of God from his system, he made justice
nothing but an empty name, springing from human conventions, founded on
self-interest, and restraining men from the commission of crimes by no
other principle but that of fear.
But there is a wider sphere, than the internal welfare of independent
states, on which religion operates. In the separate society, which
every kingdom, state, or country forms within itself, the place of
religion may occasionally be supplied by the influence and execution
of municipal laws. But in all the transactions of the great community
at large, where civil laws are silent, and tribunals give way to the
decision of the sword, the law of nature and of nations, founded upon
the fear of God, and obedience to his will, is the standard of right
to which Kings and Sovereign states appeal; a violation of which is
regarded as a violation of the divine law.
XLV. But to take a closer view of the subject, we must observe that
true religion, which is the same at all periods of time, rests upon
four evident and universally acknowledged truths. The first of which
is the being and unity of God,--the second, that God is not any of
the things, that can be seen, but of a nature too sublime to be the
object of human conception, or of human sight,--the third is, that with
the eye of his providence he regards the events of this world, and
regulates them with the most equitable and unerring judgments,--the
fourth is, that he is the creator of all things, except himself. And
these four truths are unfolded and laid down in an equal number of
commandments, the first of which plainly declares the unity of God--the
second forbids any representation, by painting or image, to be made of
that being, who is invisible to mortal eye. Tacitus bears testimony to
the spiritual nature of the Jewish religion: for he says, that "the
Jews have nothing but a mental conception of one God, and they look
upon every attempt to represent him under the appearance of human form,
as a profanation of his heavenly nature."--From the third commandment
we deduce his knowledge of all human transactions, even of our very
thoughts; an omniscience upon which the obligation and sanctity of
oaths is founded. For God is a witness even of the secret designs
of the heart, so that every solemn oath is an appeal to his justice
and his power, for the vindication of truth, and the punishment of
falsehood.--The fourth commandment presents us with an account of the
creation of the world, to commemorate which God appointed the sabbath,
commanding it to be observed with a degree of reverence above every
other sacred institution. For the violation of any other rites, such
as those respecting forbidden meats, was left to the discretionary
punishment of the law: but offences against the sabbath were capital;
because, considering the nature and design of its origin, such contempt
implied a disbelief, that the world was created by God. Now the
creation of the world by God affords a tacit proof of his goodness,
wisdom, eternity and power: and the effect of this contemplative
knowledge is the offering of honour, love, worship and obedience to
God. So that Aristotle says that the man, who denies that God ought to
be honoured, or parents loved, should be taught to renounce his error,
not by reasoning, but by punishment. And, in another place, he observes
that some actions are proper on certain occasions, but reverence for
the majesty of God is requisite at all times, and in all places.
The truth of those contemplative opinions may undoubtedly be proved
from the nature of things; the clearest of which proofs is the evidence
of sense, shewing the existence of things, which naturally leads us to
consider the time, when they had no being.
But as all are not able to understand these arguments and others of
the same kind, it is sufficient to observe that in all ages and all
countries of the world, with very few exceptions, these opinions have
found a general reception with those who were too plain in their
dealings, and ingenuous in their designs, to impose upon others, and
with many, who had too much sagacity to be deceived themselves. But
when amid such variety of laws, customs, and opinions, there is so
general an agreement upon one point; that agreement may be adduced as
a proof, that such a belief owes its origin to the primitive ages of
the world, from whence it has been derived to us: when we consider too
that it has never been clearly refuted, it is a sufficient reason to
establish our faith.
XLVI. There is no excuse therefore for the rejection of those opinions,
even in cases, where there is no intuitive sagacity to discover new
proofs, or to comprehend old ones: as there are so many guides both in
nature and reason to lead men to the knowledge of those truths, and
as no solid arguments have ever been produced to establish a contrary
belief. But as human punishments form the subject of our present
inquiry, it is right to make a distinction between opinions themselves,
and the manner of deviating from them. The belief in a supreme being,
and in the controul of his providence over human affairs, is one of
those universal tenets to be found in all religions, whether true or
false. And in reality to deny the being of a God, and to deny the
interposal of his providence in human affairs, amounts in its moral
consequences to the same thing. And it is for this reason these two
opinions have been inseparably united in all ages, and among every
civilized people. Consequently we find, that in all well governed
states, wholesome laws have been enacted to restrain those, who disturb
those opinions, which have always been regarded as the chief support
of social order; and all contempt, shewn to those opinions, has
always been considered as contempt shewn to society itself, which it
consequently has a right to punish.
XLVII. There are other truths not equally self-evident, such as these,
that there are not more Gods than one; that no visible thing, neither
the world, nor the heavens, nor the sun, nor the air is God; that the
world, and the matter of which it is formed, have not existed from
all eternity, but were made by God. So that we see the knowledge of
these truths disfigured, and almost entirely obliterated among many
nations by the lapse of time. And this might the more easily happen,
as there were no legal provisions made to preserve the purity of
these truths, which were not considered as essential to the very
existence of all religion. The law indeed given to that people, who
were instructed in the clear knowledge of these truths, by the mouths
of the prophets, by miracles seen with their own eyes, or brought to
their ears by the reports of the most undoubted testimony, that law,
though it expresses the greatest abhorrence of the worship of false
gods, does not inflict the punishment of death upon all convicted of
that crime, but only in particular instances, where they have seduced
others into idolatry,--or where a state has introduced the worship
of unknown Gods,--or where the true worship of God, and obedience to
his laws have been forsaken for the worship of the stars, which St.
Paul calls serving the creature above the creator, an offence, which
was, for some time, punished among the descendants of Esau. Those
too who offered their children to Moloch, that is, to Saturn, were
punished with death. Yet the Canaanites, and the neighbouring nations,
who had long been sunk into the most depraved superstitions, were not
consigned by God to immediate punishment, but were left to fill up the
measure of their crimes. And there were other nations, where, in the
language of Scripture, God winked at the times of this ignorance. Where
men have had no means of arriving at the knowledge of a true God, as
their superstitions and errors are excusable, so where, in despite of
knowledge, they have deified Daemons, and vices, which they knew to be
such, their superstitions are not to be called errors, but impieties.
And no less impious is the supposed homage, that is paid to God with
the blood of innocent human victims, and Darius king of the Persians,
and Gelo king of Syracuse, are commended for abstaining from such
practices. Plutarch informs us of some barbarians, who would have been
punished by the Romans for offering human victims to the deity, had
they not pleaded the antiquity of the custom, which was admitted as
an excuse, though they were strictly enjoined not to follow the same
custom in future.
XLVIII. From the kind of evidence on which Christianity rests, it
is plain that no force should be used with nations to promote its
acceptance. It is not merely by natural arguments it can gain assent;
for it has made an addition of many things to natural religion. Its
evidence rests upon the history of Christ's resurrection, and upon
the miracles performed by himself and his Apostles. So that it is a
matter of fact proved by the most undeniable evidence, and of great
antiquity. Therefore a doctrine of this kind cannot be thoroughly
received upon the first hearing of it, without the secret assistance
of God: an assistance not given as a reward for the merit of works; so
that wherever it is withheld or less copiously bestowed; it is done for
reasons, which though just, are generally unknown to us, and therefore
not punishable by human judgments. For it is the custom in the sacred
writings to assign the divine pleasure as the cause of things unknown
to us.
There is another reason of no less weight, which is that Christ
being the author of a new law, will have no one brought to embrace
his doctrine by the fear of human punishments. Nor is the reason
at all weakened by the objection drawn from the parable of the
marriage-supper, where it is said the messengers are commanded to
compel the guests to come in. For the term, COMPEL, here signifies
nothing more than an earnest entreaty, a sense, in which it is used in
other parts of the New Testament, implying an earnest request made to
any one.
XLIX. But to obstruct the teachers of Christianity by pains and
penalties is undoubtedly contrary to natural law and reason: for
the doctrine of Christ, apart from all the corruptions added by the
inventions of men, contains nothing hurtful, but every thing beneficial
to society. The thing speaks for itself, and even those who were
strangers to the doctrine itself were obliged to acknowledge the truth
of this. Pliny says that the Christians bound themselves by an oath to
commit neither theft, nor robbery, nor to violate their word. It was a
common saying "Caius Seius is a good man, but he is a Christian."
Nor indeed can any danger be apprehended from the spreading of
doctrines, calculated to inspire greater sanctity of manners, and the
purest principles of obedience to lawful sovereigns. Philo has recorded
a beautiful saying of Augustus, who observed that the assemblies of the
Jews were not Bacchanalian revels, or meetings to disturb the public
peace, but schools of virtue.
L. It seems unjust to persecute with punishments those who receive
the law of Christ as true, but entertain doubts or errors on some
external points, taking them in an ambiguous meaning or different from
the ancient Christians in their explanation of them. A point which is
proved by what has been said above, and by the ancient example of the
Jews. For, possessing a law, which allowed them to inflict temporal
punishments, they never exercised that authority upon the Sadducees,
who denied the doctrine of a resurrection: a doctrine of the greatest
truth, though but faintly delivered in that law, and under a typical
application of words and circumstances.
But if there should be any weighty error, that discerning judges could
easily refute by an appeal to sacred authority, or to the opinions
of antiquity; here too it would be necessary to make allowance for
ingrafted opinions, that have grown up to form an inseparable part of
the human mind, and for the zealous attachment of every one to his own
tenets; an evil which Galen says is more difficult to be eradicated
than any constitutional disease.
CHAPTER XXI.
ON THE COMMUNICATION OF PUNISHMENT.
How accessories are liable to punishment--Sovereign Princes or
States answerable for the misconduct of their subjects, when they
know it, and do not endeavour to prevent it--Sovereigns bound not
to protect offending subjects, but to deliver them up or punish
them--The rights of suppliants belong to the unfortunate and not
to the guilty--Suppliants may be protected while the inquiry
into their case is still pending--How far states are amenable to
punishment--All the different exceptions stated--Children not
answerable for the offences of parents--The moral government of
God in this respect considered--Individuals not answerable for
offences, to which they have not given consent--Heirs, how far
answerable for the acts of their ancestors.
I. The next topic of inquiry relates to the communication of
punishment, as inflicted upon accomplices, who, in that capacity,
cannot be said to be punished for the guilt of others, but for their
own. And from what has been said above upon the loss sustained from
injury, it may be understood who are the persons, that come under this
description. For the partnership in loss, and the partnership in guilt
are regulated by nearly the same principles. Yet the obligation to
repair a loss does not always imply guilt, except where there has been
any notorious malice, in which case every damage renders the party,
who has occasioned it, liable to make reparation. So that persons
ordering the commission of any wicked or hostile act, giving the
requisite consent to it, supplying the aggressor with assistance, or
protection, or, in any other shape, partaking of the crime, by giving
counsel, commendation, or assent to his act, or when they have power to
forbid the commission of such an act, by forbearing to exercise their
authority, or by refusing to afford the succour, which they are bound
by the law of nature, or by treaty to give to the injured party, by not
using with the offender that power of dissuasion, which they have a
right to do, or lastly by concealing what they ought to make known, in
all these cases, such persons are punishable as accomplices, if they
are convicted of that degree of malice, which constitutes a crime, and
merits punishment: points which have before been discussed.
II. The case will be made clearer by examples. A civil community is
no more bound than any other society by an act of individual members,
except that act be done by its express consent and authority, or it has
neglected to disavow such a proceeding. Hence it is formally stipulated
in almost all treaties that no acts or aggressions are to be ascribed
to a state, except those, which are done in the name of the sovereign,
and by persons acting expressly under the authority of his commission.
So a father is not answerable for the misconduct of his children, a
master for that of his servants, nor a ruler for the acts of those
under him, unless there appears in any of these some connivance, or
encouragement in promoting that misconduct, or those acts.
In the case of a sovereign's responsibility for the acts of his
subjects, there are two things to be considered, which require minute
inquiry, and mature deliberation, and those are the forbearance,
and the encouragement or protection, which he has shewn to their
transgressions.
As to forbearance, it is an acknowledged point, that when he knows of
a delinquency, which he neither forbids nor punishes, when he is both
able and bound to do so, he becomes an accessory to the guilt thereof.
Cicero, in his speech against Piso, says, "it makes no great difference
especially in a consul, whether he harasses the government by moving
ruinous laws, and making mischievous speeches, or suffers others to do
the same. If a slave has committed a murder with the knowledge of his
master, the master becomes answerable for the entire deed, as it was
done with his concurrence."
But, as we have said before, besides the knowledge of a deed, to
constitute a participation in the guilt, the person so knowing it,
must possess the power to prevent it. And this is what is meant by the
legal phrase, that the knowledge of a crime, when it is ordered to
be punished, is taken in the sense of forbearance or connivance, and
it is supposed that the person, who ought to have prevented it, did
not do so. In this place knowledge implies a concurrence of will, and
connivance a concurrence of design. A master therefore is not bound by
the act of a slave, who has claimed his freedom, and done any thing in
despite of his master, because the knowledge of a crime without ability
to prevent it, by disclosure or some other means, cannot be construed
into an act of guilt. So parents are bound by the acts of children; but
only in cases where they have the children under their authority. On
the other hand, altho' by having them in their power, they might have
prevented their misconduct, they will not be answerable for it, unless
they had a knowledge of it also. For there ought to be a concurrence
of knowledge, and forbearance or encouragement to involve any one in
the guilt of another's actions; circumstances all of which by a parity
of reasoning may be applied to the connection between sovereigns and
subjects: a connection founded on principles both of natural and civil
law.
III. The matter that necessarily comes next under consideration
is the case of those, who screen delinquents from punishment. It
was before observed that, according to the law of nature, no one
could inflict punishment, but a person entirely free from the guilt
of the crime which he was going to punish. But since established
governments were formed, it has been a settled rule, to leave the
offences of individuals, which affect their own community, to those
states themselves, or to their rulers, to punish or pardon them at
their discretion. But they have not the same plenary authority, or
discretion, respecting offences, which affect society at large, and
which other independent states or their rulers have a right to punish,
in the same manner, as in every country popular actions are allowed for
certain misdemeanors. Much less is any state at liberty to pass over
in any of its subjects crimes affecting other independent states or
sovereigns. On which account any sovereign state or prince has a right
to require another power to punish any of its subjects offending in the
above named respect: a right essential to the dignity and security of
all governments.
IV. But as it is not usual for one state to allow the armed force
of another to enter her territories under the pretext of inflicting
punishment upon an offender, it is necessary that the power, in
whose kingdom an offender resides, should upon the complaint of the
aggrieved party, either punish him itself, or deliver him up to the
discretion of that party. Innumerable instances of such demands to
deliver up offenders occur both in sacred and profane history. Thus
the other Israelites required the Benjamites to deliver up offenders,
Jud. xx.--And the Philistines demanded of the Hebrews the surrender of
Samson, as a criminal, Jud. xv.--In the same manner the Gauls made a
demand that the Fabii should be surrendered for having fought against
them. Sylla too, as Sallust informs us, urged Bocchus to deliver
up Jugurtha, and by so doing to relieve the Romans from the bitter
necessity of implicating HIM for his erroneous conduct in the same
guilt with that most desperate villain. Yet all these instances are to
be understood not as strictly binding a people or Sovereign Prince to
the actual surrender of offenders, but allowing them the alternative of
either punishing or delivering them up. For it was upon this ground,
as we are informed, that the Eleans made war upon the Lacedaemonians,
because the latter neglected to punish their subjects, who had
committed aggressions upon that people; that is, they had neither
punished nor delivered them up: for the obligation may be taken either
way, that being left to the choice of the aggrieved person, or nation,
in order to make the satisfaction the more complete.
The surrender here meant is nothing more than delivering up a citizen
or subject to the power of another state to decide upon his punishment.
But this permission neither gives nor takes away any right, it only
removes an impediment to the prosecution of a right. Wherefore if that
other people make no use of the permitted right, the offender, who
has been delivered up, is in such a situation, that he either MAY or
may NOT be punished: either of which may happen in the case of many
offences. But the right of a state, as to the enjoyment of its own
laws, and many other advantages, is not lost by any particular act
without a formal decree and judgment, unless in any way it has been
previously enacted, that certain acts, or certain omissions, shall
amount to a forfeiture of some particular rights and privileges. In
the same manner, goods, if surrendered, but not accepted, will remain
the property of the former owner. But if the surrender of a citizen
has been accepted, and, by some accident, the person so surrendered
shall afterwards return home, he will no longer be a citizen, except
by some new act of grace. What has been said of punishing or giving up
aggressors, applies not only to those, who always have been subjects
of the sovereign, in whose dominions they are now found, but to those
also, who, after the commission of a crime, have fled to some place for
refuge.
V. Nor do the so much talked of rights of suppliants, and the
inviolable nature of asylums at all weaken the argument that has been
advanced. For the advantages of such protection are designed only for
those, who are the victims of unmerited persecution, not for those
who have committed crimes injurious to mankind, and destructive to
society. Gylippus, the Lacedaemonian, as may be seen in the xiii. book
of Diodorus Siculus, speaking of the rights of suppliants, says, that
they were originally introduced, as measures of compassion to the
unfortunate, and not a screen for malicious and wanton offenders, who
have nothing but punishment to expect. And a little after he says, when
such men, prompted by malice, or rapacity have plunged into evils, they
have no right to talk of misfortune or to wear the name of suppliants.
For that is a privilege granted by the laws of nature to the innocent,
who are beaten down by the hard and oppressive strokes of ill fortune.
But the refuge of compassion is withheld, where every line of a life
has been marked with cruelty and injustice. Thus according to that law,
which partakes of the wisdom of its divine author, asylums were open
to those who had killed any one by a weapon escaping from their hand:
slaves too were allowed places of refuge, but deliberate murderers,
or those, who had disturbed the peaceful order of the state, found no
protection even from the altar of God. Philo, in explaining this law
says, that even the temple affords no refuge to the impious.
The more ancient of the Greeks acted upon the same principle. It
is said that the Chalcidians refused to deliver up Nauplius to the
Grecians, and the reason alleged was his having cleared himself of
the charges made against him. There was among the Athenians an altar
dedicated to Mercy; it is mentioned by Cicero, Pausanias, Servius, and
also by Theophilus, and it is described at full length by Statius in
the xii. book of his Thebais. The poet explains to what description of
men it afforded shelter: it was, he says, to those who were driven from
their homes by the calamity of war, or stripped of their kingdoms by
usurpers. Tacitus in the third book of his Annals, and 60th chapter,
reprobates the custom, prevailing in his time among the cities of
Greece, of making it an act of religion to protect offenders from the
punishment due to their crimes. Such offenders therefore ought either
to be punished, or delivered up, or, at least, ordered to withdraw.
Perseus the Macedonian king, clearing himself to Martius from the
charge of screening those, who had attempted the life of Eumenes;
said, "as soon as I was apprised by you of their being in Macedonia, I
ordered immediate search to be made for them, peremptorily commanding
their perpetual banishment from my kingdom."
The right of demanding the surrender or punishment of criminals that
have fled into other kingdoms, has, in most parts of Europe, during
the present, and the immediately preceding centuries, been generally
exercised in cases, where the crimes were such as affected the safety
of the state, or were attended with notorious atrocity. It has been
usual to pass over, with mutual connivance, crimes of an inferior kind,
except where it has been agreed to the contrary by express treaty. Nor
can it be concealed that where robbers and pirates have gained a truly
formidable power, it has often been deemed an act of humane policy both
in Sovereign Princes, and States to exercise forbearance towards them,
rather than to drive them to greater acts of desperation by treating
them with all the rigour, which they deserve.
VI. If the act, of which refugees and suppliants are accused, is not
prohibited by the law of nature or of nations, the matter must be
decided by the civil law of the country, from which they come. This
was a received opinion in ancient times, as we find from the language
of Aeschylus, in whose Tragedy of the Suppliants, the King of Argos,
addressing a number of the daughters of Danaus, on their coming
from Egypt, says, "If the sons of Egypt exercise controul over you,
maintaining that they are authorised to do so by the law of the state,
as being the nearest allied by blood, who can resist them? It is for
you to prove that, according to the laws of your country, they have no
authority over you."
VII. and VIII. It has often been a celebrated topic of discussion,
whether a whole community can be punished for misconduct. And this is
the proper place for that inquiry.
It was shewn in a former part of this treatise, that a body politic
though it may seem to vary by a succession of new members, continues
the same, as long as it retains its form. In which case it seems liable
to punishment no less than individuals. On the other hand bodies
politic seem to possess many privileges peculiar to themselves, such
as having a common treasury, a common seal, laws, and other similar
advantages. But there are some distinctions, which they particularly
derive from the INDIVIDUALS of which they are composed. Thus we say
that Universities are learned, or Garrisons brave, according to the
number of learned or gallant men, which they respectively contain.
Merit is a distinction of this kind, as being a gift of nature to
individuals, or an individual acquirement, which no public body,
OF ITSELF, can have. So that upon the death or departure of those
meritorious individuals, the degree of merit, which any public society
derived from their presence, must become extinct. In the same manner,
the debt of punishment which is considered as arising from some act of
demerit, must cease with the debt of the individual delinquents.
Arrian is justly commended for censuring the vengeance retorted upon
the Persians by Alexander, at a time, when those, who had committed
the original aggressions on the Greeks, had long been laid in their
graves. He passes a like sentence upon the burning of Persepolis, as
a retaliation for what the Persians had done at Athens. Such acts of
retaliation, after a lapse of years, have been vindicated by some
writers, as an imitation of the slow, but unerring progress of divine
justice. But we must remember that the ways of God are not as our ways,
nor is the exercise of his justice to be measured by our counsels. For
if descendents can claim no merit for the actions of their FOREFATHERS,
neither is it right they should be punished for THEIR transgressions.
The consequences of merit indeed may be transmitted without injury, and
therefore without injustice; but it is not so with punishments.
IX. Having thus shewn that a communication of punishment is necessarily
connected with a participation in guilt, it remains to consider
whether punishment can be extended to those, who are no way concerned
in the crime. In order to understand this clearly, and to prevent the
mistakes that may arise from a similarity of expression, where there
is no similarity of facts, it will be necessary to make use of some
precautions.
X. In the first place there is a difference between a loss DIRECTLY
occasioned by any act, and one resulting but INDIRECTLY from it.
Now it may be called a direct injury to deprive any one of what
peculiarly belongs to him as his right. An indirect injury is that
which prevents any one from possessing what he otherwise would have
done, by destroying the condition or means, which gave him such a
right. As an example, Ulpian says, "if any one has opened a well in
his own ground, by which the subterraneous streams of water, that
would have passed to the lands of another, are cut off, here no fault
is imputable to the person who has only exercised his own right." And
in another place, he says, it makes a great difference, whether any
one directly does an injury, or is only indirectly and unintentionally
instrumental in preventing another from reaping advantages, which he
would otherwise have enjoyed. And it is absurd, says Paulus, another
legal authority, for men to be called rich before they possess the
means of being so. Thus when the property of parents is forfeited, it
is felt as an inconvenience by their children; though it cannot be
considered as a direct punishment inflicted upon them, because that
property would never have been theirs, unless the parents had retained
it to their last breath. On which Alphenus has made a just observation,
in saying, that, by the punishment of the father, children lose that
which would have come to them from him, but things, which they do not
receive from him, such as the gifts of nature, or those derived from
any other quarter, remain untouched. Cicero relates that in this manner
the children of Themistocles were reduced to want, nor does he think
it unjust that the children of Lepidus should share the same fate. And
he says that it is an ancient custom, and the received usage of all
states, the hardship of which nevertheless was greatly softened by the
laws of Rome at a later period. Thus when a whole people is implicated
in the misconduct of the majority, which holds the representative
character of the state, and consequently loses its civil liberties,
its fortifications, and other privileges, the loss affects innocent
individuals, but only in those things, which they could not have
enjoyed, except as belonging to that community.
XI. Besides, we must observe, that the offence of one man may sometimes
occasion inconvenience or loss to another, and yet that offence may not
be considered as the immediate cause of the action, which is grounded
on the exercise of a right. This may be explained by an example. Thus
if any one has engaged for another's debt, he brings himself into
the dilemma named in the ancient proverb, that being bound for any
one is the next stage to ruin; but it is a MAN'S OWN PROMISE, and
NOT ANOTHER'S HAVING INCURRED A DEBT, that is the real cause of his
obligation. For as a person, who has given security for a purchaser, is
not, properly speaking, bound by the PURCHASE, but by his own PROMISE:
so if any one has engaged to be responsible for a delinquent, it is
his own ENGAGEMENT, and not the ACT OF THAT DELINQUENT, which creates
his obligation. And hence the inconvenience of that kind which any one
incurs, must be measured not by the delinquency of another, but by his
own power to enter into any such voluntary engagement. In consequence
of which no one can give surety to suffer death for another; because no
one has such power over his own life, as to take it away himself, or
to be bound to forfeit it for another. Though the ancient Greeks and
Romans thought otherwise, and therefore they maintained that a surety
might be put to death for any one, as may be seen in the well known
story of Damon and Pythias, and hostages were frequently punished in
this manner.
What has been said of life may be applied to the limbs also, which no
man has a right to part with, except for the preservation of the whole
body. But if any one has engaged to suffer banishment, to submit to a
pecuniary fine, or any other means of satisfying justice, any thing he
suffers on this account will not, strictly speaking, be considered as a
PERSONAL punishment, but as the performance of an agreement.
Something like this occurs in the right, which any one possesses
dependent on another's will, both with respect to the right of
individuals to private property, and to the more extensive right to
demesnes possessed by a state. For if any one is deprived of such a
thing owing to another's fault, here the executive power depriving that
person, is not inflicting a punishment on HIM, but only exercising a
prior right.
XII. and XIII. Having laid down these distinctions, we may observe that
it is impossible that an innocent person should suffer for another's
crime. This does not proceed from the reasons given by Paulus, who
maintains that punishment is designed for the reformation of the
offender. For it seems possible that an example may be made, extending
beyond the person of the criminal himself, when it affects, in its
consequences, those, who are nearly related to him. So that it is not
for the sake of example only that punishment is inflicted, but because
the obligation thereto arises from the demerit of the offending party.
Now every demerit must be of a personal nature, as it proceeds from
a man's own will, over which he is supposed to exercise a perfect
controul.
XIV. In the law given to the Hebrews, God threatens to avenge the
impiety of fathers upon their children. But he has sovereign dominion
over our lives and substance, as being his gift, which he may take
away from any one, whenever he pleases, without assigning his reasons.
Therefore if he thinks proper to take away by a premature or violent
death the children of Achan, Saul, Jeroboam or Ahab, he is exercising
over them the right of sovereignty, as well as that of punishment;
imposing by that awful example the more severe penalty upon the
parents. For if they survive their children, which was what the divine
law had most in view, and therefore did not extend these threats beyond
the time of great grand-children, a period to which the age of man
might reach, it is certain that parents would be severely punished by
such a sight, the most afflicting of any they could witness. Or if they
should not survive such an event, to die under such an apprehension
would be a great calamity.
But it is proper to remark that examples like those are never employed
by God, except against crimes affecting his divine Majesty, as false
worship, perjury or sacrilege. Indeed those threats of divine vengeance
are not always enforced; especially where any extraordinary virtue
shines in the characters and conduct of the children: as may be seen in
the xviii. chapter of the prophesy of Ezekiel. Plutarch has discussed
this topic with great eloquence in his book on the remote vengeance of
God.
As the Gospel so clearly unfolds the future punishments of the wicked,
all the threats contained in that new covenant terminate in the
persons of the offenders themselves. But the ways of providence in
these respects are not the rule which men can follow. For God, even
without any reference to crime, is the sovereign lord and disposer of
human life, a commission which man is only allowed to execute against
the perpetrators of certain crimes. Wherefore as that same divine law
forbids parents to be put to death for the offences of children, so
it exempts children from the same punishment for the actions of their
fathers: a lenity which is greatly commended by Josephus and Philo.
The same commendation is bestowed by Isocrates upon the laws of Egypt;
and by Dionysius of Halicarnassus upon those of Rome.
XV. But if it is unjust in human laws to punish the misconduct of
parents in the persons of their children, how much more severe was the
law of the Persians and Macedonians extending the penalties for crimes
against the state to every branch of the offender's relatives, in the
most remote degree, a law surpassing all others in rigour?
XVI. XVII. and XVIII. What has been said respecting the punishment
of children for the offences of their fathers or forefathers, may be
applied to the relation subsisting between sovereigns and subjects. For
it is a relation springing from the contract of society, which makes
the sovereign the essential head, life and soul of that body, in which
his people form the members. As the civil community therefore with its
sovereign or head forms but one body, there can be no separation of
interests, but what affects one part must be prejudicial or serviceable
to the whole.
XIX. Why should an heir, it has been sometimes asked, be bound by other
debts of his ancestor, and not feel the effects of his punishment for
misconduct? to which answer may be given, that the heir represents
the person of the deceased not in his merits or demerits, which are
purely personal, but in his property; an artificial mode of preserving
unbroken the chain of succession and descent.
XX. And hence it follows, that if in addition to the demerit of an
offence, any new grounds of obligation should arise connected with the
punishment, they must be discharged not properly as a punishment, but
as a debt. Thus the heir will be liable to pay the costs awarded by a
judgment after a contested suit, which is considered in the light of a
contract.
CHAPTER XXII.
ON THE UNJUST CAUSES OF WAR.
Differences between real and colourable motives--War atrocious
without either of these motives--Wars of plunder, under the
most plausible pretexts, not justifiable--Causes apparently,
but not really just--Unnecessary advantage--Desire of a better
soil--Discovery of things belonging to others--Incapacity of the
original owners--War not always justifiable under the pretext
of asserting liberty--Or of imposing a beneficial government
upon a people against their will--Emperor's pretensions to
universal empire refuted--Pretensions of the Church--Imperfect
obligations--Difference between wars originally unjust and those
afterwards becoming so.
I. In a former part of this work, where the justice of war was
discussed, it was observed that some wars were founded upon real
motives and others only upon colourable pretexts. This distinction
was first noticed by Polybius, who calls the pretexts, προφασεις
{prophaseis}, and the real causes, αἰτιας {aitias}. Thus Alexander made
war upon Darius, under the pretence of avenging the former wrongs done
by the Persians to the Greeks. But the real motive of that bold and
enterprising hero, was the easy acquisition of wealth and dominion,
which the expeditions of Xenophon and Agesilaus had opened to his view.
In the same manner, a dispute about Saguntum furnished the
Carthaginians with COLOURABLE MOTIVES for the second Punic war, but,
in REALITY, they could not brook the indignity of having consented to
a treaty, which the Romans had extorted from them at an unfavourable
moment; and more especially as their spirits were revived by their
recent successes in Spain. The real causes assigned by Thucydides
for the Peloponnesian war, were the jealousies entertained by the
Lacedaemonians of the then growing power of the Athenians, though the
quarrels of the Corcyreans, Potidaens, and other secondary states were
made the ostensible reasons.
II. There are some who have neither ostensible reasons, nor just causes
to plead for their hostilities, in which, as Tacitus says, they engage
from the pure love of enterprise and danger. A disposition to which
Aristotle gives the name of ferocity. And in the last book of his
Nicomachean Ethics, he calls it a bloody cruelty to convert friends
into enemies, whom you may slaughter.
III. Though most powers, when engaging in war, are desirous to colour
over their real motives with justifiable pretexts, yet some, totally
disregarding such methods of vindication, seem able to give no better
reason for their conduct, than what is told by the Roman Lawyers of a
robber, who being asked, what right he had to a thing, which he had
seized, replied, it was his own, because he had taken it into his
possession? Aristotle in the third book of his Rhetoric, speaking of
the promoters of war, asks, if it is not unjust for a neighbouring
people to be enslaved, and if those promoters have no regard to the
rights of unoffending nations? Cicero, in the first book of his
Offices, speaks in the same strain, and calls "the courage, which is
conspicuous in danger and enterprise, if devoid of justice, absolutely
undeserving of the name of valour. It should rather be considered as a
brutal fierceness outraging every principle of humanity."
IV. Others make use of pretexts, which though plausible at first sight,
will not bear the examination and test of moral rectitude, and, when
stripped of their disguise, such pretexts will be found fraught with
injustice. In such hostilities, says Livy, it is not a trial of right,
but some object of secret and unruly ambition, which acts as the chief
spring. Most powers, it is said by Plutarch, employ the relative
situations of peace and war, as a current specie, for the purchase of
whatever they deem expedient.
By having before examined and established the principles of just and
necessary war, we may form a better idea of what goes to constitute
the injustice of the same. As the nature of things is best seen by
contrast, and we judge of what is crooked by comparing it with what
is straight. But for the sake of perspicuity, it will be necessary to
treat upon the leading points.
It was shewn above that apprehensions from a neighbouring power are
not a sufficient ground for war. For to authorize hostilities as a
defensive measure, they must arise from the necessity, which just
apprehensions create; apprehensions not only of the power, but of the
intentions of a formidable state, and such apprehensions as amount
to a moral certainty. For which reason the opinion of those is by no
means to be approved of, who lay down as a just ground of war, the
construction of fortifications in a neighbouring country, with whom
there is no existing treaty to prohibit such constructions, or the
securing of a strong hold, which may at some future period prove a
means of annoyance. For as a guard against such apprehensions, every
power may construct, in its own territory, strong works, and other
military securities of the same kind, without having recourse to actual
war. One cannot but admire the character, which Tacitus has drawn
of the Chauci, a noble and high-spirited people of Germany, "who,
_he says_, were desirous of maintaining their greatness by justice,
rather than by acts of ungovernable rapacity and ambition--provoking
no wars, invading no countries, spoiling no neighbours to aggrandize
themselves,--yet, when necessity prompted, able to raise men with
arms in their hands at a moment's warning--a great population with a
numerous breed of horses to form a well mounted cavalry--and, with all
these advantages, upholding their reputation in the midst of peace."
VI.[55] Nor can the advantage to be gained by a war be ever pleaded as
a motive of equal weight and justice with necessity.
VII. and VIII. Neither can the desire of emigrating to a more
favourable soil and climate justify an attack upon a neighbouring
power. This, as we are informed by Tacitus, was a frequent cause of war
among the ancient Germans.
IX. There is no less injustice in setting up claims, under the pretence
of newly discovered titles, to what belongs to another.
Neither can the wickedness, and impiety, nor any other incapacity of
the original owner justify such a claim. For the title and right by
discovery can apply only to countries and places, that have no owner.
X. Neither moral nor religious virtue, nor any intellectual excellence
is requisite to form a good title to property. Only where a race of
men is so destitute of reason as to be incapable of exercising any act
of ownership, they can hold no property, nor will the law of charity
require that they should have more than the necessaries of life. For
the rules of the law of nations can only be applied to those, who are
capable of political or commercial intercourse: but not to a people
entirely destitute of reason, though it is a matter of just doubt,
whether any such is to be found.
It was an absurdity therefore in the Greeks to suppose, that difference
of manners, or inferiority of intellect made those, whom they were
pleased to call barbarians, their natural enemies. But as to atrocious
crimes striking at the very root and existence of society, the
forfeiture of property ensuing from thence is a question of a different
nature, belonging to punishments, under the head of which it was
discussed.
XI. But neither the independence of individuals, nor that of states,
is a motive that can at all times justify recourse to arms, as if
all persons INDISCRIMINATELY had a natural right to do so. For where
liberty is said to be a natural right belonging to all men and states,
by that expression is understood a right of nature, antecedent to every
human obligation or contract. But in that case, liberty is spoken of
in a negative sense, and not by way of contrast to independence, the
meaning of which is, that no one is by the law of nature doomed to
servitude, though he is not forbidden by that law to enter into such
a condition. For in this sense no one can be called free, if nature
leaves him not the privilege of chusing his own condition: as Albutius
pertinently remarks, "the terms, freedom and servitude are not founded
in the principles of nature, but are names subsequently applied to men
according to the dispositions of fortune." And Aristotle defines the
relations of master and servant to be the result of political and not
of natural appointment. Whenever therefore the condition of servitude,
either personal or political, subsists, from lawful causes, men should
be contented with that state, according to the injunction of the
Apostle, "Art thou called, being a servant, let not that be an anxious
concern?"
XII. And there is equal injustice in the desire of reducing, by force
of arms, any people to a state of servitude, under the pretext of
its being the condition for which they are best qualified by nature.
It does not follow that, because any one is fitted for a particular
condition, another has a right to impose it upon him. For every
reasonable creature ought to be left free in the choice of what may be
deemed useful or prejudicial to him, provided another has no just right
to a controul over him.
The case of children has no connection with the question, as they are
necessarily under the discipline of others.
XIII. It would scarce have been necessary to refute the foolish opinion
of some, who have ascribed to the Roman Emperors dominion over the
most remote and unknown nations, if Bartolus, deemed a lawyer of the
first eminence, had not pronounced it heresy to deny those pretensions.
This opinion has been built upon the Roman Emperor's some times having
styled himself Sovereign of the whole world; a term which it was
not unusual for many people to apply to their own country. Thus in
the scriptures we find Judea frequently called the whole inhabited
earth; therefore when the Jews, in their proverbial expression, called
Jerusalem the centre of the world, nothing more is to be implied than
that it was situated in the middle of Judea.
As to the argument in favor of universal dominion from its being so
beneficial to mankind, it may be observed that all its advantages are
counterbalanced by still greater disadvantages. For as a ship may be
built too large to be conveniently managed, so an empire may be too
extensive in population and territory to be directed and governed
by one head. But granting the expediency of universal empire, that
expediency cannot give such a right, as can be acquired only by treaty
or conquest. There were many places formerly belonging to the Roman
Empire, over which the Emperor has at present no controul. For war,
treaty, or cession have made many changes, by which the rights of
territory have passed to other states or sovereign princes, and the
standards of different communities, whether kingdoms or commonwealths,
now wave in places, which the Roman Eagle once overshadowed with his
wings. These are losses and changes, that have been experienced by
other powers no less than that, which was once mistress of the world.
XIV. But there have been some, who have asserted the rights of the
church over unknown parts of the world, though the Apostle Paul
himself has expressly said that Christians were not to judge those
who were without the pale of their own community. And though the
right of judging, which belonged to the Apostles, might in some
cases apply to worldly concerns, yet in its general nature it was of
a celestial rather than an earthly kind--a judgment not exercised
by fire and sword, but by the word of God, proposed to all men and
adapted to their peculiar circumstances--a judgment exercised by
displaying or withholding the seals of divine grace, as it might be
most expedient--lastly, it was a judgment exercised in supernatural
punishments; in punishments proceeding from God, like the punishments
of Ananias, Elymas, Hymenaeus, and others.
Christ himself, the spring, from whence all the power of the church was
derived, and whose life is the model for the church to follow, said,
his kingdom was not of this world, that is, was not of the same nature,
with other kingdoms, otherwise, like the rest of sovereigns, he would
have maintained his authority by the power of the sword. For if he had
pleased to call up the aid of Legions; he would have called up hosts of
Angels and not of men. And every exercise of his right was performed
by the influence of divine, and not of human power; even when he drove
the sellers out of the temple. For the ROD was the EMBLEM and not the
INSTRUMENT of divine wrath, as UNCTION was once a SIGN of healing, and
not the HEALING POWER ITSELF. St. Augustin on the xviii Chapter of
St. John, and 36 ver. invites Sovereign Princes into this kingdom, in
these terms, "Hear, O Jews, and Gentiles, hear, O earthly Sovereigns, I
will not obstruct your authority, for my kingdom is not of this world.
Be not alarmed, like Herod, who trembled, when he heard that Christ
was born, and slew so many innocent children, hoping to include the
Saviour in that calamity. His fear shewed itself in cruel wrath. But
my kingdom, says Christ, is not of this world. Therefore enter this
kingdom without fear. Come with faith, and provoke not the king to
anger by your delay."
XV. There is a caution too necessary to be given, against drawing
too close a parallel between ancient and modern times. For it is but
seldom that any one can adduce a case exactly conformable to his
own circumstances. To draw such pretexts from the interpretation of
prophecy is the highest presumption. For no prophecy that is yet to
be fulfilled can be unfolded without the aid of a prophetic spirit.
The times even of events, that are certain, may escape our notice.
Nor is it every prediction, unless it be accompanied with an express
command from God, that can justify recourse to arms: sometimes indeed
God brings his predicted designs to their issue by the means of wicked
instruments.
XVI. As the imperfect obligations of charity, and other virtues of the
same kind are not cognizable in a court of justice, so neither can the
performance of them be compelled by force of arms. For it is not the
moral nature of a duty that can enforce its fulfillment, but there must
be some legal right in one of the parties to exact the obligation. For
the moral obligation receives an additional weight from such a right.
This obligation therefore must be united to the former to give a war
the character of a just war. Thus a person who has conferred a favour,
has not, strictly speaking, a RIGHT to demand a return, for that would
be converting an act of kindness into a contract.
XVII. It is necessary to observe that a war may be just in its origin,
and yet the intentions of its authors may become unjust in the course
of its prosecution. For some other motive, not unlawful IN ITSELF,
may actuate them more powerfully than the original right, for the
attainment of which the war was begun. It is laudable, for instance,
to maintain national honour; it is laudable to pursue a public or a
private interest, and yet those objects may not form the justifiable
grounds of the war in question.
A war may gradually change its nature and its object from the
prosecution of a right to the desire of seconding or supporting the
aggrandizement of some other power. But such motives, though blamable,
when even connected with a just war, do not render the war ITSELF
unjust, nor invalidate its conquests.
CHAPTER XXIII.
ON DOUBTFUL CAUSES.
Origin of moral doubts--The dictates of conscience, though erroneous,
not to be violated--Opposite opinions supported by argument, or
by authority--In doubtful and important matters the safer side of
the question to be followed--In such cases it is right to abstain
from war--Disputes settled by conference or arbitration--Christian
duties--Whether single combat is allowable in order to avoid
war--In cases of equal doubt the claims of the present possessor to
be preferred--Where neither party is in possession, claims to be
divided--Whether a war can be just on both sides, explained by a
distinction.
I. There is much truth in Aristotle's observation that moral reasonings
can never amount to the certainty of mathematical demonstration.
Because in mathematical reasoning, all the figures are considered
in the abstract, purely by themselves, and without relation to the
circumstances of time or place, so that there is nothing to warp the
judgment from the object immediately under consideration. Besides the
figures in general form a direct contrast to each other. Thus, for
instance, there is no intermediate line between a straight line and a
curve.
But it is not so in morals, where the least circumstances vary the
subject, and admit a latitude of interpretation, settling the points
of truth and justice between two extremes. So that between what is
right and what is unlawful there is a middle space, where it is easy to
incline to the one side, or to the other. This occasions an ambiguity
somewhat like the difficulty of deciding the precise moment, where the
twilight begins, and where it ends. From hence Aristotle concludes that
it is sometimes difficult to determine, between two extremes, what line
of conduct ought to be chosen or rejected.
II. But it must be laid down as a necessary principle, that although
an action may in reality be just, yet if the party doing it, after
weighing every circumstance, cannot reconcile the act to his
conscience, he incurs some degree of guilt. "For whatever is not of
faith, _says the Apostle_, is sin;" where, by the term faith he means
a deliberate judgment of the mind. For God has given conscience a
judicial power to be the sovereign guide of human actions, by despising
whose admonitions the mind is stupified into brutal hardness. For
it often happens that judgment can point out nothing certain, but
hesitates; and when such doubts and hesitations cannot satisfactorily
be cleared up, the rule of Cicero is a safe one to follow, who says,
that it is an excellent injunction, which forbids us to do a thing of
the rectitude or impropriety of which we entertain a doubt.
But this rule cannot be applied, where of two things, in the choice
of which there is equal doubt, the one must be done, in which case
that must be selected, which seems to be the least unjust. For on all
occasions, where a choice cannot be avoided, the less of two evils
assumes the appearance of a virtue.
III. But in doubtful cases, after examination, the mind seldom remains
neuter, but inclines to one side, or the other, persuaded either by
the merits of the case, or by respect for the judgment of those, who
have delivered an opinion upon the question. Now the merits of the case
are derived either from the causes, the effects, or other concomitant
circumstances.
IV. To apprehend such distinctions properly, practice and penetration
are necessary, and where men have not in themselves a capacity for
the active exercise of judgment it behoves them to follow the maxims
of others, who are distinguished by their wisdom and experience.
For, in the opinion of Aristotle, those things are probably just, or
true, which seem so to all, or to the greater part of men of worth.
And this is the method of judging pursued by Sovereign Princes, whose
engagements in the affairs of life allow them but little leisure
for study and deliberation. Thus the ancient Romans never undertook
wars, till they had consulted the sacred college, established for
that purpose, and the Christian Emperors scarcely ever did so without
advising with the Bishops, in order to be apprized of any thing therein
that might affect religion.
V. It may happen in many disputed points, that the intrinsic merits of
the case, or the opinions of the learned, are equal on both sides. When
that happens, if the matters in discussion are of no great importance,
there is nothing to blame in the person, that makes his choice either
way. But in matters of moment, where the lives of men are at stake, the
decision should incline to the safer side, according to the proverbial
maxim, which pronounces it better to acquit the guilty than to condemn
the innocent.
VI. War then being an object of such weighty magnitude, in which the
innocent must often be involved in the sufferings of the guilty,
between wavering opinions the balance should incline in favour of peace.
There are three methods, by which independent nations may settle their
disputed rights without coming to the decision of the sword.
VII. The first method is that of conference. For, in the words
of Cicero, "there being two methods of deciding quarrels, the
one by discussion and the other by force, the former, a peculiar
characteristic of man, and the latter, of the brute creation: when
the first of these methods fails, men are obliged to have recourse
to the latter." Mardonius, in the Polyhymnia of Herodotus, blames
the Grecians, who, being united in one language, might settle their
quarrels by messengers of peace, by heralds, and negotiations, rather
than by war.
VIII. The other method is that of compromise, which takes place
between those, who have no common judge. Among innumerable instances
of this kind in ancient history, we may select that given by Xenophon
in his account of Cyrus, where that prince takes the king of the
Indians for arbitrator between himself and the king of Assyria. The
Carthaginians in their disputes with Masinissa prefer a settlement of
this kind before a decision of war. Livy too informs us that the Romans
themselves, in a dispute with the Samnites, made an appeal to the
common allies of both.
The office of deciding wars and putting an end to the contentions of
armies was assigned, according to Strabo, to the Druids of the Gauls,
and upon the testimony of the same writer, it formed a part of the
priestly functions among the Iberians.
Surely then it is a mode of terminating their disputes, balancing
their powers, and settling their pretensions worthy to be adopted by
Christian Kings and States. For if, in order to avoid trials before
judges who were strangers to the true religion, the Jews and Christians
appointed arbitrators of their own, and it was a practice recommended
and enjoined by St. Paul, how much more ought such a practice to be
recommended and enforced, to gain the still nobler end of preventing
the calamities of war.
These and many other reasons of no less importance might be advanced
for recommending to Christian powers general congresses for the
adjustment of their various interests, and for compelling the
refractory to submit to equitable terms of peace.
IX. A third method of terminating disputes, without hostilities, was
by lot, a practice commended by Dion Chrysostom in his speech on the
interposition of fortune in directing affairs, and it was commended
long before him by Solomon in the xviii. chapter of his Proverbs.
X. Nearly related to the last named method is that of single combat, a
practice recommended under the idea that by the risque of two lives a
quarrel might be decided, which would otherwise have cost the blood of
thousands. In Livy we find Metius addressing Tullus in the following
terms, "let us try some method of determining to whom the pre-eminence
shall belong, without wasting the blood of each people." Strabo says
it was the practice of the ancient Greeks, and Aeneas proposed it to
Turnus, as the most equitable way of settling their pretensions. It is
described too as the custom of the ancient Franks.
XI. Although in doubtful cases, both sides are bound to devise every
means of avoiding hostilities, yet it is a duty more incumbent upon
the claimant than upon the immediate possessor of whatever may be the
subject of dispute. For it is a rule not only of civil, but of natural
law, that, where the pretensions are equal, those of the possessor are
to be preferred.
To the foregoing remarks an additional observation may be made, that if
any one, knowing his pretensions to be just, cannot produce sufficient
proofs to convict the intruder of injustice, he cannot lawfully have
recourse to arms, because he has no OSTENSIBLE RIGHT, by which he can
compel the intruder to relinquish the possession.
XII. But where the right is ambiguous, and neither party has
possession, the pretender, who refuses to divide the claims, may
reasonably be charged with injustice.
XIII. From what has been said it will not be difficult to settle a
much agitated question, whether, with respect to those, who are the
principal movers of a war, there can be justice on both sides. For
there are distinctions proper to be made in the various acceptations of
the word JUST.
A thing is said to be just, either as to its causes, or its effects.
The causes too may be confined either to justice in a PARTICULAR
acceptation, or they may be extended so as to include under that
name every kind of rectitude. Again, a particular acceptation may be
divided into two kinds, one relating to the ACTION, and the other to
the agent.[56] An agent may be said to act justly, when, in what he
does, he commits no breach of STRICT LAW, though his conduct may not be
conformable to equity.
In a PARTICULAR acceptation of the word justice, with regard to
a matter in dispute, it cannot in war, any more than in legal
proceedings, apply to both sides. For there can be no moral principle,
commanding us, under the same circumstances, both to DO, and to ABSTAIN
from a particular action. It may happen indeed that neither of two
belligerent powers may act unjustly. For no one can be charged with
acting unjustly unless he knows that he is doing so; but there are
many, who are not aware of the nature, extent, and consequences of
their measures. Thus in a law-suit, both parties may sincerely believe
that they have justice on their side. For many things both in law and
fact, which would establish a right, may escape the notice of men.
In a GENERAL acceptation, an action may be called just, where the
agent is free from every kind of blame. Yet in many cases an agent may
deviate from the strict rules of legal justice, and be liable to no
blame, when that deviation is owing to unavoidable ignorance, there
having been neither time nor opportunity sufficient for him to know
the substance, or perhaps existence of the law. So it may happen in
law-suits, that both parties are free not only from the imputation
of injustice, but from all blame, especially where either of them is
litigating a matter not on his own, but on another's account; as for
instance where a guardian is acting for his ward, he would not be
authorized in abandoning even a doubted right. Aristotle says that in
matters of disputed right neither side can be charged with injustice;
conformably to which opinion Quintilian observes that an upright
pleader may be engaged on either side of the question. Aristotle
further observes that passing a just judgment is an ambiguous term,
signifying that a judge determines either according to the strict
letter of the law, or according to the dictates of his own conscience.
And, in another place, he has said that giving a wrong judgment through
ignorance is no act of injustice.
But in matters of war and peace, where such weighty and varied
interests on all sides are concerned, it would be difficult to obtain
a judgment purely impartial, and abstracted from all personal motives,
unless there be the most clear and undeniable evidence on the points in
question.
If we denominate a thing to be just, from its effect in conferring
certain rights, in this sense it is plain that in war there may be
justice on both sides. In the same manner, a sentence not strictly
legal, or a possession not perfectly just may nevertheless confer
certain rights.
CHAPTER XXIV.
PRECAUTIONS AGAINST RASHLY ENGAGING IN WAR, EVEN UPON JUST GROUNDS.
Relaxation of right in order to avoid war--particularly
penalties--Self-preservation motive for forbearing
hostilities--Prudential rules in the choice of advantages--Peace
preferable to the extermination of hostile powers--Forbearance
prudent in inferior powers--War not to be undertaken, but from
necessity.
I. Although it seems not to fall within the immediate province of a
treatise, entitled the RIGHTS OF WAR, to enter into an investigation of
other moral duties, which the relations of war and peace prescribe, yet
it may not be improper slightly to touch upon certain errors, which it
is necessary to obviate, in order to prevent any one from supposing,
that, after establishing the right of war, he is authorized, INSTANTLY
or at ALL TIMES, to carry his principles into action, and to reduce his
theory to practice. So far from this, it frequently happens that it is
an act of greater piety and rectitude to yield a right than to enforce
it.
It was before shewn, in its proper place how honourable it is to be
regardless of our own lives, where we can preserve the lives, and
promote the lasting welfare of others. A duty that should operate with
greater force upon Christians, who have before their eyes continually
the example of him, who died to save us, while we were enemies and
ungodly. An example which calls upon us, in the most affecting manner,
not to insist upon the rigorous prosecution of our justest rights,
where it cannot be done but by the calamities, which war occasions.
If arguments and motives like these wanted authorities, abundance of
authorities might be adduced for their support.
II. Many reasons might be brought to dissuade us from urging the full
infliction of a punishment. There is an obvious instance in the conduct
of fathers, who connive at many faults in their children. But whoever,
is authorized to punish another, assumes the character of a sovereign
ruler, that is, of a father; in allusion to which St. Augustin,
addressing Count Marcellinus, says, "O Christian Judge, fulfil the
office of a pious father."
Sometimes indeed men are so circumstanced, that to relinquish a right
becomes not only a laudable act, but a debt of respect to that law,
which commands us to love our enemies: a law to be respected and obeyed
not only for its intrinsic value, but as being a precept of the gospel.
By the same law, and for the same reasons, we are commanded to pray for
and to promote the welfare and safety of Christian Princes and Kings,
because their welfare and safety are so essential to the order, peace,
and happiness of society.
III. With respect to the pardon of offences committed against
ourselves, little need be said, as it is known to be a leading clause
in the code of a Christian's duty, to which he readily and freely
submits, knowing that God for Christ's sake has forgiven him. Thus
revealed law adds a sanction to what was known by heathens to be an
amiable precept. Cicero has drawn a fine character of Caesar, in which
he commends the excellence of his memory that could recollect every
thing but injuries. We find many noble examples of this excellent
virtue in the writings of Moses and in various other parts of
scripture. These, and these motives ALONE, when they can safely be
complied with are sufficient to keep the sword within its scabbard. For
the debt of love and forbearance to our enemies is an obligation, which
it is honourable to discharge.
IV. It is often a duty, which we owe to our country and ourselves,
to forbear having recourse to arms. After the college of heralds had
pronounced a war to be just we are informed by Plutarch in the life of
Numa, that the Senate further deliberated, whether it was expedient
to undertake it. According to our Saviour's beautiful and instructive
parable, a king, when he is obliged to go to war with another king,
should first sit down, an expression implying an act of deliberation,
and consider within himself, whether, with ten thousand men he is
able to encounter one who is coming against him with twenty times
that number: and if he finds himself unequal to the contest, before
the enemy has entered his territories he will send an embassy to him
offering terms of peace.
V. In all cases of deliberation, not only the ultimate but the
intermediate objects leading to the principal ends are to be
considered. The final object is always some good, or at least the
evasion of some evil, which amounts to the same. The means are never
to be considered by THEMSELVES, but only as they have a tendency to the
proposed end. Wherefore in all cases of deliberation, the proportion,
which the means and the end bear to each other, is to be duly weighed,
by comparing them together: a mode of comparison, in which there are
three rules necessary to be observed.
The first thing, in a moral point of view, to be considered is, what
tendency the desired object has to produce good or evil; and, if the
former has the preponderancy, we are then at liberty to chuse it.--In
the second place, if it appears difficult to decide, whether the good
or the evil predominates, we may chuse the object, if, in the choice
and use of our means, we can give a turn to affairs, that may throw
the preponderance into the scale of advantage--or lastly if the good
and the evil bear no proportion to each other, nor the means, AT THE
FIRST VIEW, appear adequate to the end, if, in pursuing an object,
the tendency to good, compared with the tendency to evil be greater
than the evil itself when compared with the good; or if the good,
in comparison of the evil, be greater than the tendency to evil, in
comparison of the tendency to good,[57] we may decide in favour of it.
Cicero has treated these abstruse points in a more popular and pleasing
manner than abstract reasoning would allow. Applying all the beauties
of eloquence to elucidate moral truth, he says, "it is the height of
folly and presumption UNNECESSARILY to expose ourselves to dangers. In
encountering calamities we must imitate the conduct of physicians who
use gentle remedies with weakly constitutions. But in constitutions
of a stronger cast, especially, in virulent disorders, they must
have recourse to more powerful, though more dangerous expedients. In
the same manner, a skilful pilot would not attempt to face the wind
directly, but would tack about in order to avoid its fury."
VI. An example of evils, that ought by all possible means to be
avoided, is furnished by the consultations among the states of Gaul,
who, according to the account of Tacitus, deliberated, whether they
should make choice of liberty or peace. By liberty is here meant civil
liberty, that is, the right of governing themselves, and remaining
independent states; and by peace is meant such a peace as would prevent
the whole people from being exterminated, a calamity like that which
befel the Jews, when their city was besieged by Titus.
In such cases reason itself dictates the choice of peace, as the only
means of preserving life, which is the immediate gift of God, and the
foundation of every blessing. So that the Almighty, as we read in
his sacred volume, deems it a kindness, when instead of destroying
a people, he permits them to be reduced to slavery. Therefore he
admonishes the Hebrews, by the mouth of his prophet, to surrender to
the Babylonians, rather than to die by pestilence and famine.
What has been said of submitting to disadvantages, and some calamities
for the preservation of life or liberty, may be applied to every object
of dear value. As Aristides says, it is a moral duty in a storm, to
save the ship by casting overboard the goods, but not the crew.
VII. In exacting punishment it is necessary to use the precaution of
avoiding hostilities with a power of equal strength. For to avenge a
wrong, or to assert a right by force of arms requires a superiority of
strength. So that not only prudence, but a regard for their subjects
will at all times deter rulers from involving their people in the
calamities of war. A principle of justice too, the sole directress of
human affairs, binding sovereigns and subjects to each other by their
mutual interests, will teach this lesson of precaution. For reparation
must be looked for at the hands of those, who bring on the calamities
of wanton and unnecessary war. Livy calls that a just, which is a
necessary war, and it is a pious cause, when no hope is left, but in
recourse to arms.
VIII. It is but now and then a cause of such imperious necessity
occurs, as to demand the decision of the sword, and that is, when, as
Florus says, the desertion of a right will be followed by calamities
far more cruel, than the fiercest wars. Seneca says, "that it is right
to meet danger, when equal harm would result from acquiescing in an
injury," and in this, he is supported by Tacitus, who calls "war a
happy exchange for a miserable and insecure peace," and the same
animated writer in another place observes, that "an oppressed people
may recover their liberty by daring enterprize, and, if defeated they
cannot be reduced to greater subjection than before;" a sentiment, with
which Livy accords, in naming "peace, when coupled with servitude, a
far more grievous calamity, than all the horrors of war." But it is not
so, as Cicero says, where defeat will be attended with proscription,
and victory with bondage.
IX. Another necessary precaution relates to the TIME, when it is
proper to undertake a war, which depends upon a due calculation,
whether there are resources and strength sufficient to support our just
pretensions. This is conformable to what was said by Augustus, that no
war should be undertaken, but where the hopes of advantage could be
shewn to overbalance the apprehensions of ruin. Scipio Africanus, and
Lucius Aemilius Paulus used to speak in terms not inapplicable to this
subject, for they said "it was never right to try the event of battle,
but under extreme necessity, or favourable circumstances."
The above precautions are of great use, where we hope by the dread and
fame of our preparations to accomplish our object with little or no
danger.
CHAPTER XXV.
THE CAUSES OF UNDERTAKING WAR FOR OTHERS.
Sovereigns may engage in war to support the rights of their
subjects--Whether an innocent subject can be delivered up to
an enemy to avoid danger--Wars justly undertaken in support of
confederates upon equal, or unequal terms--For friends--For
any men--Omission of this duty not blamable, from motives of
self-preservation--Whether war may be justly undertaken in defence
of another's subjects, explained by distinctions.
I. In speaking of belligerent powers, it was shewn that the law of
nature authorises the assertion not only of our own rights, but of
those also belonging to others. The causes therefore, which justify
the principals engaged in war, will justify those also, who afford
assistance to others. But whether any one presides over an household,
or a state, the first and most necessary care is the support of his
dependents or subjects. For the household forms but one body with the
master, and the people with the sovereign. So the people of Israel
under the command of Joshua took up arms in support of the Gibeonites,
whom they had subdued. Our forefathers, said Cicero to the Romans,
often engaged in war to support the rights of merchants, whose vessels
had been plundered. The same Romans who would refuse to take arms for
a people who were only allies, did not hesitate to assert by force of
arms the injured rights of the same, when they became their subjects.
II. Yet the cause of any subject, although it may be a just cause, does
not always bind sovereigns or rulers to take arms: but only when it
can be done without inconvenience to all, or the greater part of their
subjects. For the interests of the whole community, rather than those
of particular parts, are the principal objects of a sovereign's care;
and the greater any part is, the nearer its claims and pretensions
approximate to those of the whole.
III. Some have maintained the position, that if an enemy requires
the surrender of a citizen, however innocent, the demand must
unquestionably be complied with, if the state is too feeble to resist
it. This opinion is strongly controverted by Vasquez, but if we attend
to his meaning more than his words, we shall find it to be the drift
of his argument, that such a citizen ought not to be rashly abandoned,
while there remains any possible hope of protecting him. For as a
case in point, he alleges the conduct of the Italian Infantry, who,
upon receiving assurances of protection from Caesar, deserted Pompey,
even before he was reduced to absolute despair: a conduct which he
deservedly reprobates in the strongest terms.
But whether an innocent citizen may be given up into the hands of an
enemy to avoid imminent destruction, which would otherwise fall upon
the state, is a point that HAS BEEN formerly, and IS still disputed by
the learned, according to the beautiful fable, which Demosthenes told
of the wolves, who demanded of the sheep the surrender of the dogs, as
the only terms of peace. The lawfulness of this is denied not only by
Vasquez, but by one, whose opinions that writer condemns, as bearing a
near approach to perfidy. Sotus holds it as an established maxim, that
such a citizen is bound to deliver himself up: this Vasquez denies,
because the nature of civil society, which every one has entered into
for his own advantage, requires no such thing.
No conclusion can be drawn from hence, except that a citizen is not
bound to this by any RIGHT STRICTLY SO CALLED, while at the same time
the law of charity will not suffer him to act otherwise. For there are
many duties not properly included in the idea of strict justice. These
are regarded as acts of good will, the performance of which is not only
crowned with praise, but the omission of them cannot escape censure.
Such is the complexion of the following maxim, that every one should
prefer the lives of an innumerable and innocent multitude to his own
personal and private welfare. Cicero, in defending Publius Sextius,
says, "If I were taking a voyage with my friends, and happening to
meet with a fleet of pirates, they threatened to sink our little bark,
unless the crew surrendered me as the victim to appease their fury,
I would sooner throw myself into the deep, than suffer my companions
out of their affection to me to encounter sure death, or even imminent
danger."
But after establishing this point, there remains a doubt, whether any
one can be COMPELLED to do what he is BOUND to do. Sotus denies this,
and in support of his argument quotes the case of a rich man, who,
though bound from motives of charity to supply the wants of the needy,
cannot be compelled to do so. But the transactions of equals with each
other, must be regulated upon principles very different from those
that regulate the mutual relations of sovereigns and subjects. For an
equal cannot compel an equal to the performance of any thing, but what
he is strictly bound by law to perform. But a superior may compel an
inferior to the performance of OTHER duties besides those of PERFECT
OBLIGATIONS; for that is a right peculiarly and essentially belonging
to the nature of superiority. Therefore certain legislative provisions
may be made, enacting the performance of such duties, as seem to
partake of the nature of benevolence. Phocion, as it is mentioned in
Plutarch's lives, said that the persons, whom Alexander demanded, had
reduced the commonwealth to such distress, that if he demanded even his
dearest friend Nicocles, he should vote for delivering him up.
IV. Next to subjects, and even upon an equal footing with them, as to
claims of protection, are allies, a name including, in its consequences
and effects, both those, who have formed a subordinate connection with
another power, and those who have entered into engagements of mutual
assistance. Yet no such compacts can bind either of the parties to the
support or prosecution of unjust wars. And this is the reason, why the
Lacedaemonians, before they went to war with the Athenians, left all
their allies at liberty to decide for themselves upon the justice of
the quarrel. To which an additional observation may be made, that no
ally is bound to assist in the prosecution of schemes, which afford no
possible prospect of a happy termination. For this would be defeating
the very end of alliances, which are contracted from motives of public
advantage, and not for a participation in ruin. But any power is
obliged to defend an ally even against those, with whom it is already
connected by subsisting treaties, provided those treaties contain no
express condition prohibiting such defence. Thus the Athenians might
have defended the Corcyraeans, IN A JUST CAUSE, even against the
Corinthians, their more ancient allies.
V. A third case is that, where assistance has not been expressly
promised to a friendly power, and yet is due on the score of
friendship, if it can be given without inconvenience.
Upon this principle Abraham took arms in defence of his kinsman Lot:
and the Romans charged the Antiates to commit no acts of piracy upon
the Greeks, as being a people of the same kindred with the Italians. It
was no unusual thing with the Romans to begin, or at least to threaten
to begin wars not only in support of allies, to whom they were bound by
treaty, but in support of any friendly powers.
VI. The last and most extensive motive is the common tie of one COMMON
NATURE, which alone is sufficient to oblige men to assist each other.
VII. It is a question, whether one man is bound to protect another, or
one people another people from injury and aggression. Plato thinks that
the individual or state not defending another from intended violence
is deserving of punishment. A case for which provision was made by the
laws of the Egyptians.
But in the first place it is certain that no one is bound to give
assistance or protection, when it will be attended with evident danger.
For a man's own life and property, and a state's own existence and
preservation are either to the individual, or the state, objects of
greater value and prior consideration than the welfare and security of
other individuals or states.
Nor will states or individuals be bound to risk their own safety, even
when the aggrieved or oppressed party cannot be relieved but by the
destruction of the invader or oppressor. For under some circumstances
it is impossible successfully to oppose cruelty and oppression, the
punishment of which must be left to the eternal judge of mankind.
VIII. Though it is a rule established by the laws of nature and of
social order, and a rule confirmed by all the records of history, that
every sovereign is supreme judge in his own kingdom and over his own
subjects, in whose disputes no foreign power can justly interfere.
Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their
people to despair and resistance by unheard of cruelties, having
themselves abandoned all the laws of nature, they lose the rights of
independent sovereigns, and can no longer claim the privilege of the
law of nations. Thus Constantine took up arms against Maxentius and
Licinius, and other Roman emperors either took, or threatened to take
them against the Persians, if they did not desist from persecuting the
Christians.
Admitting that it would be fraught with the greatest dangers if
subjects were allowed to redress grievances by force of arms, it
does not necessarily follow that other powers are prohibited from
giving them assistance when labouring under grievous oppressions. For
whenever the impediment to any action is of a personal nature, and not
inherent in the action itself, one person may perform for another,
what he cannot do for himself, provided it is an action by which some
kind service may be rendered. Thus a guardian or any other friend may
undertake an action for a ward, which he is incapacitated from doing
for himself.
The impediment, which prohibits a SUBJECT from making resistance, does
not depend upon the nature of the OCCASION, which would operate equally
upon the feelings of men, whether they were subjects or not, but
upon the character of the persons, who cannot transfer their natural
allegiance from their own sovereign to another. But this principle does
not bind those, who are not the liege-subjects of that sovereign or
power. Their opposition to him or the state may sometimes be connected
with the defence of the oppressed, and can never be construed into an
act of treason. But pretexts of that kind cannot always be allowed,
they may often be used as the cover of ambitious designs. But right
does not necessarily lose its nature from being in the hands of wicked
men. The sea still continues a channel of lawful intercourse, though
sometimes navigated by pirates, and swords are still instruments of
defence, though sometimes wielded by robbers or assassins.
BOOK III.
CHAPTER I.
WHAT IS LAWFUL IN WAR.
What is lawful in war--General Rules derived from the
law of nature--Stratagems and lies--Arrangement of the
following parts--First rule, all things necessary to the
end lawful--Right resulting not only from the origin of
a war, but from causes growing out of the same--Certain
consequences justifiable, though not originally lawful--What
measures are lawful against those who furnish an enemy with
supplies--Stratagems--Negative--Positive--Sometimes allowable to
use words in a sense different from the general acceptation--A
lie according to the true notion of it injurious to the rights
of others--Falsehood allowable in order to deceive children or
madmen--Any one addressing another without intentions to deceive,
not answerable for the misconceptions of a third person--A person
not answerable for the wilful mistakes of those to whom he
speaks--The fictitious threats of a person in authority--Fiction
allowable in order to save the lives of the innocent, or to promote
other equally important purposes--Deception lawful against an
enemy, but not including promises, or oaths--To forbear using
this privilege an act of generosity and Christian simplicity--Not
allowable to urge others to what is unlawful for them, but not for
us to do--Allowable to use the services of deserters.
I. Having, in the preceding books, considered by what persons, and for
what causes, war may be justly declared and undertaken, the subject
necessarily leads to an inquiry into the circumstances, under which war
may be undertaken, into the extent, to which it may be carried, and
into the manner, in which its rights may be enforced. Now all these
matters may be viewed in the light of privileges resulting simply from
the law of nature and of nations, or as the effects of some prior
treaty or promise. But the actions, which are authorised by the law of
nature, are those that are first entitled to attention.
II. In the first place, as it has occasionally been observed, the means
employed in the pursuit of any object must, in a great degree, derive
the complexion of their moral character from the nature of the end to
which they lead. It is evident therefore that we may justly avail
ourselves of those means, provided they be lawful, which are necessary
to the attainment of any right. RIGHT in this place means what is
strictly so called, signifying the moral power of action, which any one
as a member of society possesses. On which account, a person, if he has
no other means of saving his life, is justified in using any forcible
means of repelling an attack, though he who makes it, as for instance,
a soldier in battle, in doing so, is guilty of no crime. For this is a
right resulting not properly from the crime of another, but from the
privilege of self-defence, which nature grants to every one. Besides,
if any one has SURE and UNDOUBTED grounds to apprehend imminent danger
from any thing belonging to another, he may seize it without any regard
to the guilt or innocence of that owner. Yet he does not by that
seizure become the proprietor of it. For that is not necessary to the
end he has in view. He may DETAIN it as a precautionary measure, till
he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what
belongs to him, and is unlawfully detained by another: or, if that is
impracticable, he may seize something of equal value, which is nearly
the same as recovering a debt. Recoveries of this kind establish a
property in the things so reclaimed; which is the only method of
restoring the equality and repairing the breaches of violated justice.
So too when punishment is lawful and just, all the means absolutely
necessary to enforce its execution are also lawful and just, and every
act that forms a part of the punishment, such as destroying an enemy's
property and country by fire or any other way, falls within the limits
of justice proportionable to the offence.
III. In the second place, it is generally known that it is not the
ORIGIN only of a just war which is to be viewed as the principal source
of many of our rights, but there may be causes growing out of that war
which may give birth to additional rights. As in proceedings at law,
the sentence of the court may give to the successful litigant other
rights besides those belonging to the original matter of dispute. So
those who join our enemies, either as allies or subjects, give us
a right of defending ourselves against THEM also. So too a nation
engaging in an unjust war, the injustice of which she knows and ought
to know, becomes liable to make good all the expences and losses
incurred, because she has been guilty of occasioning them. In the
same manner those powers, who become auxiliaries in wars undertaken
without any reasonable grounds, contract a degree of guilt and render
themselves liable to punishment in proportion to the injustice of their
measures. Plato approves of war conducted so far, as to compel the
aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the
prosecution of a lawful object, do many things, which were not in the
contemplation of the original design, and which in THEMSELVES it would
not be lawful to do. Thus in order to obtain what belongs to us, when
it is impossible to recover the specific thing, we may take more than
our due, under condition of repaying whatever is above the real value.
For the same reason it is lawful to attack a ship manned by pirates, or
a house occupied by robbers, although in that ship, or that house there
may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable
to right taken in its strictest sense is not always lawful in a moral
point of view. For there are many instances, in which the law of
charity will not allow us to insist upon our right with the utmost
rigour. A reason for which it will be necessary to guard against
things, which fall not within the original purpose of an action, and
the happening of which might be foreseen: unless indeed the action
has a tendency to produce advantages, that will far outweigh the
consequences of any accidental calamity, and the apprehensions of evil
are by no means to be put in competition with the sure hopes of a
successful issue. But to determine in such cases requires no ordinary
penetration and discretion. But wherever there is any doubt, it is
always the safer way to decide in favour of another's interest, than
to follow the bent of our own inclination. "Suffer the tares to grow,
_says our divine teacher_, least in rooting up the tares you root up
the wheat also."
The general destruction, which the Almighty, in right of his supreme
Majesty, has sometimes decreed and executed, is not a rule, which we
can presume to follow. He has not invested men, in the exercise of
power, with those transcendent sovereign rights. Yet he himself,
notwithstanding the unchangeable nature of his sovereign will, was
inclined to spare the most wicked cities, if ten righteous persons
could be found therein. Examples like these may furnish us with rules
to decide, how far the rights of war against an enemy may be exercised
or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are
authorised to act against those, who are neither enemies, nor wish to
be thought so, but who supply our enemies with certain articles. For we
know that it is a point, which on former and recent occasions has been
contested with the greatest animosity; some wishing to enforce with
all imaginary rigour the rights of war, and others standing up for the
freedom of commerce.
In the first place, a distinction must be made between the commodities
themselves. For there are some, such as arms for instance, which are
only of use in war; there are others again, which are of no use in
war, but only administer to luxury; but there are some articles, such
as money, provisions, ships and naval stores, which are of use at all
times both in peace and war.
As to conveying articles of the first kind, it is evident that any
one must be ranked as an enemy, who supplies an enemy with the means
of prosecuting hostilities. Against the conveyance of commodities of
the second kind, no just complaint can be made.--And as to articles of
the third class, from their being of a doubtful kind, a distinction
must be made between the times of war and peace. For if a power cannot
defend itself, but by intercepting the supplies sent to an enemy,
necessity will justify such a step, but upon condition of making
restoration, unless there be some additional reasons to the contrary.
But if the conveyance of goods to an enemy tends to obstruct any
belligerent power in the prosecution of a lawful right, and the person
so conveying them possesses the means of knowing it; if that power, for
instance, is besieging a town, or blockading a port, in expectation of
a speedy surrender and a peace, the person, who furnishes the enemy
with supplies, and the means of prolonged resistance, will be guilty
of an aggression and injury towards that power. He will incur the
same guilt, as a person would do by assisting a debtor to escape from
prison, and thereby to defraud his creditor. His goods may be taken by
way of indemnity, and in discharge of the debt. If the person has not
yet committed the injury, but only intended to do so, the aggrieved
power will have a right to detain his goods, in order to compel him to
give future security, either by putting into his hands hostages, or
pledges; or indeed in any other way. But if there are evident proofs
of injustice in an enemy's conduct the person who supports him in such
a case, by furnishing him with succours, will be guilty not barely of
a civil injury, but his giving assistance will amount to a crime as
enormous, as it would be to rescue a criminal in the very face of the
judge. And on that account the injured power may proceed against him as
a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue
manifestoes, as an appeal to other states, upon the justice of their
cause, and their probable hopes of ultimate success. This question has
been introduced under the article, which refers to the law of nature,
as history supplies us with no precedent to deduce its establishment
from the voluntary law of nations.
We are informed by Polybius, in his first book, that the Carthaginians
seized some of the Romans, who were carrying supplies to their enemies,
though they afterwards gave them up, upon the demand of the Romans.
Plutarch says that when Demetrius had invested Attica, and taken the
neighbouring towns of Eleusis and Rhamnus, he ordered the master and
pilot of a ship, attempting to convey provisions into Athens, to be
hanged, as he designed to reduce that city by famine: this act of
rigour deterred others from doing the same, and by that means he made
himself master of the City.
VI. Wars, for the attainment of their objects, it cannot be denied,
must employ force and terror as their most proper agents. But a doubt
is sometimes entertained, whether stratagem may be lawfully used in
war. The general sense of mankind seems to have approved of such a
mode of warfare. For Homer commends his hero, Ulysses, no less for
his ability in military stratagem, than for his wisdom. Xenophon, who
was a philosopher as well as a soldier and historian, has said, that
nothing can be more useful in war than a well-timed stratagem, with
whom Brasidas, in Thucydides agrees, declaring it to be the method from
which many great generals have derived the most brilliant reputation.
And in Plutarch, Agesilaus maintains, that deceiving an enemy is both
just and lawful. The authority of Polybius may be added to those
already named; for he thinks, that it shews greater talent in a general
to avail himself of some favourable opportunity to employ a stratagem,
than to gain an open battle. This opinion of poets, historians, and
philosophers is supported by that of Theologians. For Augustin has
said that, in the prosecution of a just war, the justice of the cause
is no way affected by the attainment of the end, whether the object
be accomplished by stratagem or open force, and Chrysostom, in his
beautiful little treatise on the priestly office, observes, that the
highest praises are bestowed on those generals, who have practised
successful stratagems. Yet there is one circumstance, upon which the
decision of this question turns more than upon any opinion even of the
highest authority, and that is, whether stratagem ought to be ranked as
one of those evils, which are prohibited under the maxim OF NOT DOING
EVIL, THAT GOOD MAY ENSUE, or to be reckoned as one of those actions,
which, though evil IN THEMSELVES, may be so modified by particular
occasions, as to lose their criminality in consideration of the good,
to which they lead.
VII. There is one kind of stratagem, it is proper to remark, of a
negative, and another of a positive kind. The word stratagem, upon the
authority of Labeo, taken in a negative sense, includes such actions,
as have nothing criminal in them, though calculated to deceive, where
any one, for instance, uses a degree of dissimulation or concealment,
in order to defend his own property or that of others.[58] So that
undoubtedly there is something of harshness in the opinion of Cicero,
who says there is no scene of life, that will allow either simulation,
or dissimulation to be practised. For as you are not bound to disclose
to others all that you either know or intend; it follows that, on
certain occasions, some acts of dissimulation, that is, of concealment
may be lawful. This is a talent, which Cicero, in many parts of his
writings, acknowledges that it is absolutely necessary for statesmen
to possess. The history of Jeremiah, in the xxxviiith chapter of his
prophecy, furnishes a remarkable instance of this kind. For when that
prophet was interrogated by the king, respecting the event of the
siege, he prudently, in compliance with the king's orders, concealed
the real matter from the nobles, assigning a different, though not a
false reason for the conference, which he had had. In the same manner,
Abraham called Sarah, his sister, an appellation used familiarly
at that time to denote a near relation by blood, concealing the
circumstance of her being his wife.
VIII. A stratagem of a positive kind, when practised in actions, is
called a feint, and when used in conversation it receives the name of
a lie or falsehood. A distinction is made by some, between these two
kinds of stratagems, who say, that words are signs of our ideas, but
actions are not so. But there is more of truth in the opposite opinion,
that words of themselves unaccompanied by the intention of the speaker,
signify nothing more than the inarticulate cries would do of any one
labouring under grief, or any other passion: which sounds come under
the denomination of actions, rather than of speech. But should it be
said that being able to convey to others the conceptions of his mind,
by words adapted to the purpose, is a peculiar gift of nature, by which
man is distinguished from other parts of the animated creation, the
truth of this cannot be denied.
To which we may add that such communication may be made not only by
words, but by signs or gestures, like those used to the dumb; it
makes no difference, whether those signs or gestures have any natural
connection with the thing they are intended to signify, or whether
such a connection is only assigned to them by custom. Equivalent to
such signs or gestures is handwriting, which may be considered, as a
dumb language, deriving its force not merely from the words used, and
the particular form of the letters, but from the real intention of
the writer, to be gathered from thence:--to be gathered either from
the resemblance between the characters and the intentions, as in the
Egyptian hieroglyphics, or from pure fancy, as among the Chinese.
Here likewise another distinction is necessary to be applied in the
same manner, as was done before, in order to remove all ambiguity in
using the term of THE LAW OF NATIONS. For it was there said, that the
laws established by independent and separate states, whether or no
those laws implied any mutual obligations, were denominated the LAW
OF NATIONS.[59] So that words, gestures, and signs, made use of to
convey a meaning, imply an obligation, in all the persons concerned, to
receive and employ them in their common acceptation. But the employment
of OTHER MEANS, coming under NONE OF THOSE DESCRIPTIONS, cannot be
construed into a violation of any social contract, although some may
be deceived thereby. It is the REAL NATURE of the actions that is here
spoken of, and not the ACCIDENTAL circumstances attending them: such
actions for instance, as occasion no mischief; or if they do so, there
is no guilt, where there is no treacherous design.
We have an instance of the former kind in the conduct of our Saviour,
who, on the way to Emmaus, pretended to the disciples, that he was
going further; here was a harmless stratagem, unless we interpret the
words, as expressive of his intention to have gone further, if he had
not been prevented by their efforts and entreaties to detain him. And
in another part of the sacred history it is said, that he intended
to have passed by the Apostles on the sea, that is, he intended to
have done it, had he not been so earnestly importuned by them to go
into the ship. There is another instance too in the conduct of Paul,
who circumcised Timothy, though he knew the Jews would conclude from
thence, that the ordinance of circumcision, which in reality had been
abolished, was still binding upon the descendants of Israel, and that
Paul and Timothy were of the same opinion. Whereas Paul had no such
intention, but only hoped, by that means, to open for himself and
Timothy a way to more familiar intercourse with the Jews. Neither could
an ordinance of that kind, when the divine obligation was repealed, any
longer be deemed of such importance, nor could the evil of a temporary
error, resulting from thence, and afterwards to be corrected, be
regarded as equivalent to the opportunity, which Paul thought to gain,
of making it conducive to the introduction of Christian truth.
The Greek Fathers have given the name of ECONOMY, or MANAGEMENT
to stratagems of this kind. On this subject there is an admirable
sentiment in Clement of Alexandria, who, in speaking of a good man,
says that "he will do many things for the benefit of his neighbour
alone, which he would not otherwise have undertaken."
One of these stratagems was practised by the Romans, who, during the
time that they were besieged in the Capitol, threw some loaves of
bread into the enemy's camp, that it might not be supposed they were
pressed by famine. The feigned flight, which Joshua ordered his people
to make, to assist him in his designs upon Ai, affords an instance of
a stratagem of the second kind; the ensuing mischiefs of which may be
considered, as some of the effects of lawful war. The ORIGINAL DESIGN
of that pretended flight does not at all affect the question. The
enemy took it for a proof of fear; and he was at liberty to do so,
without debarring the other of his right to march this way, or that,
with an accelerated or retarded motion, with a shew of courage, or an
appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practised
with success upon an enemy, by assuming his arms, ensigns, colours, or
uniforms; all which may be justified upon the same principle. For all
these are actions, which any one may avail himself of at his pleasure,
by departing from the usual course of his military system. For such
points of discipline and system depend upon the will and fancy of the
military commanders in each state, rather than upon any invariable
custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained,
form a subject of more weighty discussion, with which the consideration
of lies or falsehood is necessarily interwoven.
All stratagems of this kind are so direct a violation of all moral
principle, both in their nature and consequences, that almost every
page of the revealed will of God declares their condemnation. Solomon
describes a righteous, that is, a good man, as one, who holds every
false word in detestation, deprecating the least appearance of
deception: and the Apostle's injunction accords with these sentiments,
instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine
records present, that such a recommendation of fair, open, and sincere
dealing is to be found. It is the theme of praise with poets and
philosophers, and the angry hero of the Grecian poet declares, that
he detests the man, as an infernal being, who utters one thing with
his tongue, while he conceals another in his heart. But making some
allowance for poetic fiction--we find even the grave, sober, and
discerning, Stagirite describing falsehood, as a vile, and abominable
refuge, and painting truth as a lovely object, that must extort the
warmest praise.
These are all great and high authorities in favour of open dealing.
Yet there are names of no less weight, both among sacred and profane
writers, whose opinions are a vindication of stratagems, when used upon
PROPER occasions. One writer speaks of a case, where stratagem may be
used, even for the benefit of the person, on whom it is practised, and
adduces the instances of a physician, who, by means of a deception,
overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be
necessary to devise some way of examining falsehood both in its more
extensive, and more confined acceptation. Nor is speaking an untruth,
UNAWARES, to be considered in the nature of a lie, but the falsehood,
which comes within the limits here defined, is the KNOWN and DELIBERATE
UTTERANCE of any thing contrary to our real conviction, intention, and
understanding.
Words, or signs, importing the same meaning as words, are generally
taken for conceptions of the mind, yet it is no lie for any man to
utter a falsehood, which he believes to be true; but the propagation
of a truth, which any one believes to be false, IN HIM amounts to a
lie. There must be in the use of the words therefore an INTENTION to
deceive, in order to constitute a falsehood in the proper and common
acceptation. Consequently, when any one single word, or the whole
tenour of a discourse, admits of more significations than one, either
by the use of some popular phrase, some term of art, or intelligible
figure of speech, in that case if the speaker's intention correspond
with any one of those meanings, he cannot be charged with using
falsehood, although it is possible that a hearer may take his words in
a very different sense. It is true that using such an ambiguous method
of speaking on ALL OCCASIONS is not to be approved of, though there
are particular circumstances under which it may be reconciled with
honour and justice. In communicating knowledge, for instance, there
is no harm in using a metaphor, an irony, or an hyperbole, figures of
speech, tending either to adorn or to elucidate a subject. There are
cases too, where by this doubtful mode of expression it may be proper
to avoid an urgent and impertinent question. There is an instance of
the former kind in our Saviour's saying, that "our friend Lazarus
sleepeth," where the disciples understood him, as if he were speaking
of the refreshing rest of an ordinary sleep: and when he spoke of
restoring the temple, which he meant his own body, he knew that the
Jews applied what he said to the MATERIAL EDIFICE of the Temple. In the
same manner he frequently addressed the multitudes in parables, which
they could not understand by barely hearing, without that docility
of mind, and attention, which the subject required. Profane history
too furnishes us with an example of the second kind, in the conduct
of Vitellius, who, as Tacitus informs us, gave Narcissus doubtful and
ambiguous answers, in order to avoid his urgent questions; as any
explicit declaration might have been attended with danger.
On the other hand, it may happen to be not only censurable, but even
wicked to use such a manner of speaking, where either the honour of God
or the welfare of mankind is concerned, or indeed any matter, which
demands explicit avowals, and open dealing. Thus in contracts every
thing necessary to their fulfillment ought to be fully disclosed to
those concerned. There is an apposite expression of Cicero, who says,
that every degree of deception ought to be banished from all contracts,
and there is in the old Athenian Laws a proverb, conformable to this,
which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion
of a lie. The common notion of a lie therefore is something spoken,
written, marked, or intimated, which cannot be understood, but in a
sense different from the real meaning of the speaker. But a lie, in
this stricter acceptation, having some thing unlawful in its very
nature, necessarily requires that a distinction should be made between
it and that latitude of expression already explained. And if this
acceptation be properly considered, at least according to the opinion
prevailing in all nations, it seems, that no other explanation of it is
necessary to be given, except that it is a violation of the existing
and permanent rights of the person, to whom a discourse, or particular
signs, are directed. It is a violation of the rights of ANOTHER; for
it is evident, that no one can utter a falsehood with a view to impose
upon himself. The rights here spoken of are peculiarly connected with
this subject. They imply that liberty of judgment, which men are
understood, by a kind of tacit agreement, to owe to each other in their
mutual intercourse. For this, and this alone is that mutual obligation,
which men intended to introduce, as soon as they began to use speech,
or other signs of equal import. For without such an obligation the
invention of those signs would have been perfectly nugatory. It is
requisite too, that at the time a discourse is made, such a right or
obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete,
owing to the rise or occurrence of some new right: which is the case
with a debt, that may be released by acquittance, or non-performance of
a condition. It is farther requisite, to constitute a VIOLATION OF THIS
RIGHT, that the ensuing injury should immediately affect the PERSON
ADDRESSED: as in contracts, there can be no injustice, but what affects
one of the parties, or persons concerned.
And perhaps under the head of this right, it may not be improper to
assign a place to that TRUE SPEAKING, which Plato, following Simonides,
classes with justice, in order to form a more striking contrast with
that falsehood, so often prohibited in Scripture, by the name of false
witness to, or against, our neighbour, and which Augustin, in defining
a lie, calls an intention to deceive. Cicero also in his offices lays
down truth, as the basis of justice.
The right to a discovery of the whole truth may be relinquished by the
express consent of the persons, who are engaged in a treaty: the one
may declare his intention not to disclose certain points, and the other
may allow of this reserve. There may be also a tacit presumption, that
there are just reasons for such reserve which may perhaps be necessary
out of regard to the rights of a third person: rights which, in the
common judgment of all sober men, may be sufficient to counterbalance
any obligation in either of the persons engaged in the treaty to make
a full disclosure of his views and sentiments.--These principles,
duly considered, will supply many inferences to reconcile any seeming
contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or
children, the LITERAL MEANING of which may not be true, without
incurring the guilt of wilful falsehood. A practice which seems to be
allowed by the common sense of all mankind. Quintilian, speaking of the
age of puerility, says, it is a period of life, when many useful truths
may be taught in the dress of fiction.--Another reason given is, that
as children and madmen possess no perfect power of judging, impositions
of that kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to any one, who is not
thereby deceived, although a third person, not immediately addressed,
may misconceive the matter, there is no wilful falsehood in the case.
No WILFUL FALSEHOOD towards the person addressed: because he feels no
greater injury from thence, than an intelligent hearer would do from
the recital of a fable, or the use of a metaphor, irony, or hyperbole
in speech. It cannot be said that an injury is done to the person,
who accidentally and cursorily hears a matter, and misconceives it:
for being no way concerned, there is no obligation due to him. As
he misconceives a thing addressed to ANOTHER, and not to HIMSELF,
he must take upon his own head all the consequences of the mistake.
For, properly speaking, the discourse, WITH RESPECT TO HIM, is no
discourse, but an inexpressive sound that may signify one thing as well
as another. So that there was nothing wrong in the conduct of Cato the
Censor, who made a false promise of assistance to his confederates, nor
in that of Flaccus, who informed others that Aemilius had taken the
enemy's city by storm, although the enemy were deceived by it. Plutarch
mentions an instance of the same kind in the life of Agesilaus. Here no
communication was made to the enemy, and the prejudice he sustained was
an accidental thing no way unlawful in itself, either to be wished for
or procured.
XIV. In the third place, whenever it is certain that the person, on
whom a deception is practised, discovers that the intent of it was to
do him a service; he will not feel it as a grievance, nor can it come
under the strict denomination of a lie or falsehood. It will be no
more an INJURY, than it would be a THEFT in any one, presuming upon an
owner's consent, to take something belonging to that owner, in order
to convert it to his use in a very beneficial way. For in cases of
notorious certainty, a PRESUMPTION may be taken for express consent.
But it is evident that no man would CONSENT to receive an INJURY.
From hence it appears, that a person is guilty of no treachery, who
uses unfounded or fictitious motives to console a friend in distress,
as Arria did to Paetus upon the death of his son, of which there is
an account in Pliny's Epistles, or in a general, who in a perilous
situation should avail himself of false intelligence, to encourage his
troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of
judgment is, in such a case, of less consequence, because it is but
momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those
above mentioned, and that is, when any one, possessing pre-eminent
authority, orders another, in a subordinate capacity, to execute some
device or stratagem, conducive either to his individual, or to the
public welfare. Which Plato seems to have had particularly in view,
in allowing those in authority to avail themselves of pretexts, or
stratagems. The same writer is very correct in his notion of not making
such a device a characteristic of that authority, which belongs to the
supreme being. For all such devices, however justifiable they may be in
CERTAIN CASES, strongly betray that imperfection, which is inseparable
from all human systems.
The stratagem, which Joseph employed to obtain further discoveries
without making himself known to his brethren, is much commended by
Philo, as a mark of great policy, when, contrary to the convictions
and feelings of his own mind, he accused them of being spies, and
afterwards charged them with theft. It was by a stratagem of the same
kind, that Solomon gave proof of his inspired wisdom, when he used the
FICTITIOUS threat of dividing the living child in order to discover the
real mother.
XVI. The fifth case, which allows a stratagem to be practised, is
that, where it may be the ONLY means of saving the life of an innocent
person, of obtaining some object of equal importance, or of diverting
another from the perpetration of some horrid design. The heathen
poet has given a beautiful illustration of this in his praises of
Hypermnestra, whose conduct he calls "a splendid stratagem, ennobling
the virgin to all posterity."
XVII. It is evident that many writers of acknowledged wisdom, and sober
judgment, have carried the point farther than has been done in this
treatise, in allowing the use of false representations to an enemy. In
cases, where public enemies are concerned, they maintain, that it is
lawful to deviate from those strict rules of avowing and disclosing
all our intentions, which they prescribe, on all other occasions. Such
is the opinion of Plato and Xenophon among the Greeks, of Philo among
the Jews, and Chrysostom among Christians. It may not perhaps be amiss
to cite, in this place, the message sent by the men of Jabesh Gilead
to the Ammonites, by whom they were besieged, and also that of the
prophet Elisha, and at the same time to mention the conduct of Valerius
Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be
illustrated from what is said by Eustratus, Archbishop of Nice, "An
able and upright counsellor is not obliged to disclose the whole
truth: for there may be occasions, when it may be necessary for him to
recommend the means of deceiving an enemy, or to employ some stratagem
towards a friend, where it may turn to his advantage."
XVIII. What has been said of false speaking must be understood as
applied to affirmative declarations, which can be prejudicial to no
persons, but public enemies: it can by no means be taken to include
promises. For promises confer upon the person, to whom they are made,
a peculiar right to claim their full performance. And this is a rule,
which must take place, even between public enemies; a rule to which
existing hostilities are not allowed to form an exception. It is a
maxim proper to be enforced in TACIT, as well as in EXPRESS agreements:
as when a parley or conference is demanded, there is always an IMPLIED
promise, that both sides shall attend it with perfect safety. But these
are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with
respect to oaths, both of the affirmative and promissory kind, where
it was maintained that they exclude all exceptions, all mental
reservations towards the person, to whom they are made, being regarded
not merely as a solemn transaction with that individual, but as a
stedfast appeal to God. Such an appeal to the supreme being demands the
performance of an oath, even if it gave the individual no right to the
same.
At the same time it was observed, that a sworn declaration is not like
one of any other kind, where an application of terms different from
their usual meaning may supply the speaker with an excuse for evading
their import. But truth requires every declaration and promise to be
made in terms, which it is supposed that every man of integrity and
clear judgment will understand, spurning at the impious thought, that
men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those
stratagems, which even the law of nature allows to be employed as a
means of self-defence against an enemy. But they did so, not from any
opinion of their unlawfulness, but from a noble loftiness of mind,
and from a confidence in their own strength. Aelian has preserved
a saying of Pythagoras, "that there are two things, in which man
approaches nearest to God, in always speaking the truth, and doing good
to others." Aristotle, somewhere in his Ethics, calls speaking truth,
the freedom of a great soul, and Plutarch says, that falsehood is the
qualification of a slave. But an adherence to truth, in simplicity of
heart, is not the only duty required of Christians, in this respect,
they are commanded to abstain from all vain discourse, as having for
their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which
may properly come under this head, and that is, the unlawfulness of
urging or persuading any one to do an unlawful act. For instance, no
subject has a right to lift his hand against his sovereign, to deliver
up a town without public authority, or to despoil his neighbour of his
goods. It would be unlawful then to encourage the subject of an enemy,
as long as he continues his subject, to do any of these acts. For the
person, who urges another to do a wicked act, makes himself a partner
in his guilt. Nor can it be received as a just answer, that urging
a subject to the perpetration of such a deed is nothing more than
employing the lawful means of destroying an enemy. For though it may
be necessary and just to destroy him, if possible, yet that is not the
way, in which it should be done. Augustin has well observed, that it
makes no difference whether any one should commit a crime himself, or
employ another as his instrument.
But employing the spontaneous offers of a deserter is not contrary to
the laws of war, and is a very different action from that of seducing a
subject from his allegiance.
[Illustration: _WAR AND PEACE_
_This is a frontispiece to a Latin edition of Grotius' De Jure Belli
ac Pacis, published at Amsterdam in 1670. It is intended to be
symbolical of War and Peace acting under the direction Justice,
these three figures forming the central group._
]