[61] OF THE

RIGHTS OF WAR AND PEACE.

BOOK II.

CHAPTER I.

Of the Causes of War; and first, of Self-Defense and the Defense of our Property.

I. 1 LET us come to the causes of war; I mean justificatory causes; for there are causes which operate on the ground of utility, distinct from these which depend on justice; and these again may be distinguished from occasional causes, or the first collision, as the stag in the war of Turnus and Æneas. These are sometimes confounded. [See Polybius, Livy, Elian, Diodorus.]

2 These justificatory causes are properly our subject. The necessity of just causes for war is acknowledged. [See Dionysius, Demosthenes, Dio Cassius, Cicero.]

3 Just cause is requisite for public no less than for private war. Seneca complains that the State forbids homicide on a small scale, but commands it on a large one. It is true that wars undertaken 62by public authority have peculiar jural effects, as public sentences have; but they are not therefore blameless, except there be a reason for them. If Alexander made war on the Persians without cause, he was rightly called a robber by the Scythians, by Seneca, by Lucan, by the Indians; and treated as an equal by a pirate. Philip his father did the like. Augustine says, Without justice what is empire, but robbery on a great scale? So Lactantius.

4 A just cause of War is injury done us, and nothing else. Augustine says, The Injustice (that is the injury) of the adverse party makes a war just. The formula of the Roman Heralds [in declaring war] was, I call you to witness that that people is unjust, and does not perform its obligations.

II. 1 There are evidently as many sources of war as there are of Actions at law; for when the judgments of tribunals cease to be of force, war begins. Now Actions are either on account of injury done, or not yet done: Actions for injury not yet done, are when security is sought that an offence shall not be committed, or that reparation shall be made for an incumbent loss, or an injunction that no force be used. Actions for injury done, are either that it be repaired, or punished; injury to be repaired regards either what is or was ours, as when we reclaim our property, or claim an obligation; or it regards what is owing to us, either by contract, or for wrong done us, or by appointment of law. An act regarded as punishable gives rise to accusation and public trial.

2 Most writers state three just causes of war; defense, recovery of property, and punishment of wrong; which three we find mentioned in the proclamation of Camillus against the Gauls: All that we may lawfully defend, recover, revenge. [Compare this with Plato and Seneca.] The formula of the Roman Heralds was, What things were to be given, done, and discharged, they have not given, done, and discharged. [See Sallust; Augustine.]

3 Such is the natural feeling of Justice among nations. [See Diodorus, Livy, Aristotle, Curtius.] Therefore the first cause of a just war is an injury not yet done which menaces body or goods.

III. If the body be menaced by present force with danger of life not otherwise evitable, war is lawful, even to the slaying of the aggressor, as we have before said, in proving some private war to be lawful. And this right of defense arises from the natural right of self-protection, not from the injustice or fault of another who makes the danger. And therefore this right of self-protection is not taken away, even if the aggressor be blameless; if, for instance, he be a soldier acting bonâ fide; or if he take me for another than I am, or if he be insane or a sleepwalker, such as we read of; it is sufficient that! am not bound to suffer what he attempts to inflict; just as if a wild beast were to attack me.

IV. 1 Whether innocent persons, who, interposing prevent the 63defense or flight without which death cannot be avoided may be cut down or trampled down, is a question. There are who think it lawful, even Divines. And certainly if we only took at Natural Law, that cares much less for ties of society, than for the defense of the individual. But the law of love, especially the Evangelical law, which commands us to regard another as ourselves, plainly does not permit this.

2 Thomas Aquinas well says, if it be rightly taken, that a man killed in self-defense is not killed by intention: not that sometimes, if no other way of safety appear, it may not be lawful to do that of set purpose, which will cause the death of the aggressor; but that such death is not chosen as something primarily intended, as in judicial punishment it is, but it is chosen as the only thing which is then possible; since he who is attacked, even then, ought to do anything by which the assailant may be scared away, or deprived of power, rather than by which he may be killed.

V. 1 Present danger is here required, and imminent in a point of time. I confess indeed that if the aggressor be taking up weapons, and in such a way that be manifestly does so with the intent to kill, the deed may be anticipated; for in moral things, as in natural, there is no point without a certain latitude: but they are in great error who allow any fear [however slight] as a right of killing for prevention. It is well said by Cicero that most injuries proceed from fear, he who meditates hurting another, fearing that if he do not do so, he will suffer some evil. So Clearchus in Xenophon, Cato for the Rhodians. [See.] Gellius says, a man is not to act like a gladiator, who must kill or be killed. So Cicero, quoted by Quintilian: Euripides, Thucydides, Livy. Quintilian quotes, Who allowed you such fear? And so Livia in Dio. [See.]

2 If any one direct against us violence not present; as if he make a conspiracy, or lay an ambush, or put poison in our way, or assail us with a false accusation, false testimony, or iniquitous judgment; I deny that he may be lawfully slain, if either the danger may be otherwise avoided, or it be not certain that it cannot be otherwise avoided. For delay allows recourse to many remedies and many chances; as we say, between the cup and the lip. Although there are not wanting both Jurists and Divines who extend the indulgence further. But the other opinion, which is the better and safer, is also not without its authorities.

VI. What shall we say of peril of mutilation of limb? Since the loss of a limb, especially of a principal one, is very grievous, and nearly equal to loss of life; and since, moreover, it can hardly be known whether it do not bring in its train loss of life; if it cannot otherwise be avoided, I think the author of such danger may be slain.

VII. Whether the same be lawful in defense of chastity, can scarcely be doubted, since not only common estimation, but the divine law, makes chastity of the same value as life. [He refers to Deut. xxii. 25, If a man find a betrothed damsel its the field, &c., the 64man shall die; which J. B. observes, hardly justifies his saying that chastity is on a par with life.] And so Paulus the Jurist decided. An example occurs in a Tribune of Marius, killed by a soldier, in Cicero and Quintilian. There are also examples of men in such cases killed by women. Such Chariclea in Hierocles justifies. [See.]

VIII. Though, as we have said, it be lawful to kill him who is preparing to kill, yet he acts more laudably who would rather be killed than kill; this is granted by some, making the exception of a person whose life is important to many. But to impose this rule, contrary to forbearance, on all whose lives concern other persons, seems very unsafe. It must, I think, he restricted to those whose duty it is to protect others from force; such as companies on the road, who are under such an engagement, and public Rulers: as Lucan says. [See.]

IX. 1 On the other hand, it may happen that because the life of the aggressor is useful to many, he cannot be killed without sin; and that, not only by the divine law, but by Natural Law. For Natural Law not only respects what corrective justice dictates, but also contains in itself acts of other virtues, as temperance, fortitude, prudence, as in certain circumstances not only good but obligatory. Now benevolence binds to act as we have said.

2 Vasquius says that a prince, when he insults an innocent man, ceases to be a prince: but nothing can be less true or more dangerous. For as ownership, so political authority, is not lost by delinquency, except the law so direct. But there never was a law that such authority should cease by an offence against a private person; and I believe, never will be. And what Vasquius lays down as the foundation of this and many other inferences, that all authority looks to the good of those who obey, not of those who command, even if it were universally true, is nothing to the purpose. For a thing does not fail because its utility in some one point fails. What he adds, that the safety of the community is desired by each for his own sake, and therefore each must prefer his own safety to that of the community, does not hang together. For we desire the safety of the community for our own sake, but not our own sake only, but that of others also. [J. B. doubts whether this be conclusive.]

3 The opinion of those who think that friendship arises from need only, is false, and rejected by the soundest philosophers; for we have a natural tendency to friendship. And that I should prefer to my sole good the good of many, benevolence often counsels, sometimes commands. 8 Seneca and Ambrose. [See.]

X. 1 If any one be in danger of receiving a buffet, or the like evil, some hold that he has a right to protect himself by killing his enemy. If merely corrective justice be regarded, I do not dissent. For though a buffet and death are very unequal, yet he who is about to do me an injury, thereby gives me a Right, that is a moral claim against him, in infinitum, so far as I cannot otherwise repel the evil. 65And even benevolence per se does not appear to bind us to the advantage of him who does us wrong. But the Gospel law has made every such act unlawful: for Christ commands us to take a buffet, rather than hurt our adversary; how much less may we kill him? We must therefore beware of the doctrine of Covarruvias, that with Natural Law in our minds, we cannot conceive anything permitted by natural reason which is not permitted by God, since God is Nature itself. For God, who is the Author of nature in such a way that he is above Nature, has a right to prescribe laws to us concerning the things which by nature are free and undetermined; much more, that that be duty which by nature is good, though not duty.

2 It is wonderful, since the will of God appears so clearly in the Gospel, that there should be found Theologians, and Christian Theologians, who not only think killing may be permitted to avoid a buffet, but even when a buffet has been received, if the striker flies, for the recovery of honour, as it is called. This seems to me very far removed from reason and piety. For honour is an opinion of one’s own excellence; and he who bears such an injury shews himself excellently patient, and so increases his honour rather than diminishes. Nor does it make any difference if some of corrupt judgment turn this virtue into a disgrace by artificial names: for those perverse judgments neither change the fact nor its value. And not only the ancient Christians said this, but also the philosophers, who said it was the part of a little mind not to be able to bear contumely, as we shall shew elsewhere.

3 Hence it appears also that that is wrong which is delivered by most writers, that defense with slaying is lawful, that is by Divine Law, (for I do not dispute that it is by Natural Law,) when flight without danger is possible: namely, because flight is ignominious, especially in a man of noble family. In truth there is, then, no ignominy, but a false opinion of ignominy, to be despised by those who follow virtue and wisdom. In this matter I rejoice that I have with me the opinion, among the Jurists, of Molinæus.

What I have said of a buffet and of flight, is to be understood of other things, by which our true estimation is not damaged.

But if any one say something of us, which if believed, would detract from our reputation among good men, what then? There are who teach that he also may be slain: very wrongly, and even contrary to Natural Law; for such slaying is not a course fitted to protect our reputation.

XI. Let us come to injuries by which our property is attacked.

If we regard corrective justice, I do not deny that in order to preserve our goods, the robber, if need be, may be killed; for the difference that there is between things and life, is compensated by the preference to be given to the innocent, and the condemnation incurred by the robber, as we have said. Whence it follows that if we regard Natural Law alone, the thief flying with his plunder may, if the goods cannot otherwise be recovered, be slain with a missile. So 66Demosthenes against Aristocrates. [See.] Nor does benevolence oppose this as a command; setting aside human and divine law; except the thing stolen be a trifle which may be contemned; an exception rightly added by some.

XII. l Let us look at the sense of the Hebrew Law, (Exod. xxii. 2) with which agrees the law of Solon, and of the Twelve Tables, and Plato’s Laws. These laws all agree in distinguishing the nocturnal from the diurnal thief^*. Some think that this is because by night we cannot tell whether he is a thief or a murderer, and therefore may kill him as a murderer. Others think it is because by night we have less chance of recovering the property. I think that neither is the true ground; but this; that no one ought to be slain directly for the sake of more things, which would be done if I were to kill an unarmed flying thief with a missile, and so recover my goods: but if I am myself in danger of life, then I may repel the danger even with danger to the life of another; nor does this cease to hold, however I have come into that danger, whether by trying to retain my property, or to recover it, or to capture the thief; for in all these cases I am acting lawfully according to my right.

2 The difference depends then on this; that by night there in no testimony to be had; and therefore if the thief be found slain, credit is to be given to him who says that he slew him in defending his life, that is, if he be found with any hurtful instrument. Deut. xxii. 2: If a thief be found breaking up, should be translated, with a weapon for breaking through. So Jer. ii. 34.

So the law of the Twelve Tables forbids the diurnal thief to be killed, except he defended himself with a weapon. On the other hand, Ulpian teaches that a man who kills a nocturnal thief does it with impunity, if he could not without peril avoid it.

3 And therefore, as I have said, the presumption is in favour of him who kills the nocturnal thief; but if there be testimony by which it appears that the slayer was not in danger of his life, the presumption ceases, and he is guilty of homicide. Add to this, that the law of the Twelve Tables required him who discovered a thief, either diurnal or nocturnal, to cry out aloud; namely, that neighbours or magistrates might come together for help and testimony. And as such concourse is easier by day than by night, therefore more credence is given in the case of the nocturnal danger.

The case is similar with regard to the Hebrew law, Deut. xxii. 23, which directs that a maid who has been forced in the field is to be believed, but in the city, not, because she cried not being in the city.

4 To this is to be added, that in what happens by night, we have no means of knowing the extent of the danger, therefore it is more terrible.

And therefore the Hebrew, like the Roman law, directs that which benevolence recommends, that no one should be slain only because 67he takes a thing, but only if he who defends it comes into danger. Maimonides says, that the slaying of a man is permitted to a private person only to preserve what, lost, cannot be recovered, life and chastity.

XIII. 1 What shall we say of the Gospel law? That it permits what the Mosaic law permitted; or that in this, as in other cases, the Gospel is more perfect than the Law, and requires more of us? I do not doubt that it does require more; for if Christ direct us to give up our coat and cloak, and Paul, to suffer unjust loss, rather than have recourse to the bloodless contest of law; they would have directed us to give up things of greater value, rather than put to death a man, the image of God, and sprung of the same blood with ourselves. Wherefore if our property can be preserved without peril of slaying, it is well; but if not, it is to be given up: except it be something on which our life and that of our family depends, and which cannot be recovered at law: as for instance, if the thief be unknown, and we have some hope that the matter will end without fatal consequences.

2 And though almost all, both Jurists and Theologians, hold that we may not only kill a man in defense of our property, but beyond that limit; as, if he be running off with what he has taken; yet we have no doubt that the opinion which we have stated was that of the early Christians. So Augustine. But this discipline has been relaxed by time.

XIV. It is made a question whether the civil law, when it permits us to kill a thief with impunity, does not give us a Right to do so; since the civil law has the Right of life and death. But this is not so. In the first place, the Civil Law has not the Right of life and death in all cases, but only in cases of great crimes. The opinion of Scotus is probable, that we have no right to condemn any one to death except for the crimes so visited in the Mosaic Law, or those which are of the same atrocity. In fact, in so grave a case, we cannot have a knowledge of the divine will which can satisfy our minds, except from that law; which certainly does not punish theft with death. And moreover, the law neither does nor ought to give the Right of privately putting to death those who deserve death, except in very atrocious crimes; otherwise tribunals would be useless. Wherefore if the law allows us in any case to kill a thief with impunity, it takes away the punishment, but does not give the Right.

XV. It follows, from what has been said, that private persons may join in single combat in two cases; first, if an assailant gives us the choice of single combat, being ready to kill us otherwise without combat; and secondly, if the king or magistrate set two condemned persons to fight in such a combat; in which case they may take their chance of surviving. But he who gives such command does not seem to do his duty well; for if the death of one was enough, it was better that he who should die should be chosen by lot.

XVI. What has been said of the right of defending ourselves and 68our property, more peculiarly relates to private war, but so that it may be adapted to public war, attending to the diversity of conditions. For in private war the Right is momentary, and ceases as soon as the judge can be referred to. But public war does not arise, except when the judge’s authority does not exist, or ends, has a prolonged character, and is constantly sustained by the accession of new losses and injuries. Besides in private war, defense alone is considered; but the public powers have the right not only of defending, but also of obtaining satisfaction. Hence they may prevent force not present, and threatening from afar; not directly (for that, as we have taught, is unjust,) but indirectly, by taking satisfaction for a delinquency begun, but not consummated^*: of which we shall treat elsewhere.

XVII. There is an intolerable doctrine in some writers, that by the Law of Nations we may rightly take arms against a power which is increasing, and may increase, so as to be dangerous. Undoubtedly, in deliberating of war, this may come into consideration, not as a matter of justice, but as a matter of utility; so that if the war be just on other accounts, it may, on this account, be prudent; and this is what the arguments of authors come to. But that the possibility of suffering force gives us the right of using force, is contrary to all notion of equity. Such is human life, that we are never in complete security. We must seek protection against uncertain fears from Divine Providence, and from blameless caution, not from force.

XVIII. 1 Nor do we agree that those who have deserved war, have a Right to defend themselves; namely, because few persons are content with taking satisfaction to the mere extent of the injury. For that fear of an uncertainty cannot give a Right to force: and so, a person accused of a crime has not a right of forcibly resisting the ministers of justice, for fear of being over-punished.

2 He who has injured another ought first to offer him satisfaction at the arbitration of a good man; and if this fail, his warfare will be righteous. So Hezekiah acted, 2 Kings xviii. 7, 14, and xix. 1. So Pontius the Samnite urged that this was all that could be required. [See Livy.] So when the Thebans had done this, Aristides says that justice had passed over to their side.