[272] CHAPTER XXIII.

Of Doubtful Causes of War.

I. WHAT Aristotle wrote is most true, that certainty is not to be found in morals as it is in mathematics: of which the reason is this, that mathematics separate the forms of things altogether from matter: and that the forms are of such a nature that there is nothing intermediate between two of them; as between a straight line and a curve there is no medium. But in moral matters, circumstances, even the least, often vary the matter; and the forms that are treated have often intermediate degrees, of such latitude that the case sometimes approaches nearer to the one extreme, sometimes to the other. Thus between that which ought to be done, and that which is entirely unlawful, there is a medium which is allowable, nearer sometimes to the one, and sometimes to the other: whence an ambiguity often takes place, like twilight between day and night, or cold water gradually heated. And this is what Aristotle says, that it is often difficult to decide which of two things is to be preferred: and so Andronicus Rhodius.

II. 1 In the first place, this is certain [as a point of morality], that if anything be just in itself, yet if it be done by him who, having deliberately weighed, thinks it unjust, the act is vicious: as St Paul says, that whatsoever is not of faith is sin; in which place faith signifies the judgment of the mind concerning the act. For God has given us the power of judging, as the guide of human actions; and if this be despised, the mind is brutified.

2 It often happens that the judgment does not pronounce a certain decision, but hesitates: and if this hesitation cannot be cleared off by an attentive consideration, Cicero’s rule must be followed; those advise well who direct you not to do anything of which you doubt whether it is just or unjust: and so the Hebrew masters say, Abstain from doubtful things. But this does not apply in cases where we absolutely must do one of two things: in that case we must choose the part that seems least unjust. For in all cases in which the elec273tion cannot be avoided, the less unjust assumes the character of good. The least of evils is to be chosen. So Aristotle, Cicero, Quintilian.

III. But in most cases, in dubious matters, the mind after some examination, does not remain undecided, but is drawn this way or that, by arguments derived from the subject, or by the opinion which it has of other men who deliver their sentiments on the subject. For what Hesiod says is true, that the best thing is to be wise one’s self, the next best, to be guided by others. Arguments from the subject are taken from the causes, effects, and other adjuncts of it.

IV. 1 But to know them well, a certain practice and skill is necessary: and those who have not this, in order rightly to frame their active judgment, are bound to listen to the counsels of wise men. For the probable opinion, as Aristotle says, is that which is held by all, or by the greater part, or the most eminent. And this is the way of judging which kings mostly use, who have not leisure to peruse or to weigh the technical descriptions of such matters. The king is wise by the multitude of wise counsellors, as an old proverb says^*. So Aristides. And so the ancient Romans undertook wars only after they had consulted the College of Feciales, instituted for that purpose, and the Christian Emperors rarely without consulting the bishops; that if there were any impediment which religion interposed, they might be warned thereof.

V. 1 It may happen, in many controversies, that probable arguments are adduced on both sides, either intrinsic to the subject, or derived from the authority of others. When that happens, if the things in question are of moderate importance, the choice, it would seem, is free from blame, on whichever side it falls. But if there is question of a matter of great moment, as of a capital punishment, then, on account of the great difference between the two sides of the choice, the safer part is to be preferred. It is better to acquit a guilty man than to condemn an innocent.

2 The writer of the Problems which go under the name of Aristotle’s, says this: and adds the reason just given. So Antipho.

VI. War is a very weighty matter, being a thing from which great calamities fall upon the innocent. Therefore when opinions are balanced, peace must have the preference. So Silius Italicus praises Fabius.

But there are three ways in which controversies may be prevented from breaking out into war.

VII. 1 The first is, Conference. There are two ways of settling disputed questions, says Cicero; one by discussion, the other by force: and the first being the character of man, the second of brutes, we are to have recourse to the latter, only if the former fails. So Terence, Apollonius Rhodius, Euripides in several places; and Phæneas in Livy 274goes further; saying, In order to avoid war we are to yield many things which cannot be gained by war. And Mardonius in Herodotus blames the Greeks for not trying negociation before war, being of the same language.

2 Coriolanus in Dionysius says, If a man asks only for his own, and betakes himself to war only when he cannot get that, all allow that it is just. And in the same writer, Tullus says, that what cannot be settled by discussion must be decided by arms. So the Vologeses in Tacitus: and so king Theodoric.

VIII. 1 Another way is Compromise, or Arbitration, between pasties who have no common judge. As Thucydides says, It is wicked to proceed against him as a wrong doer, who is ready to refer the question to an arbitrator. So Adrastus and Amphiaraus referred the question concerning the kingdom of Argos to the judgment of Eriphyle. So to decide the question concerning Salamis between the Athenians and the Megareans, five Lacedæmonian judges were chosen. So the Corcyreans signify to the Corinthians that they are ready to discuss their respective claims before the cities of Peloponnesus which they might agree to appoint. And Aristides praises Pericles, because to avoid war, he was willing to appoint arbiters. And so Æschines praises Philip for being willing to submit his controversies with the Athenians to any city equally just to both parties.

2 So the Ardeates and the Aretians in old time, and the Neapolitans and the Nolans later, referred their controversies to the decision of the Roman people. And the Samnites in controversy with the Romans appeal to common friends. So do the Carthaginians in their controversies with Masinissa to avoid war: and the Romans themselves concerning their controversy with the Samnites, refer to their common allies. Philip of Macedon in his controversy with the Greeks, says that he will take the judgment of Peoples who are at peace with both. At the request of the Parthians and Armenians, Pompey gave arbiters to settle their boundaries. Plutarch says that this was the main office of the Roman Feciales, not to allow recourse to be had to arms till all hope of a peaceable decision was gone. And Strabo says of the Druids of the Gauls, that formerly they were arbiters between hostile parties, and often made them part without fighting, who were drawn up in warlike array against each other. The same writer testifies that the priests in Iberia had the same office.

3 But especially are Christian kings and states bound to try this way of avoiding war. For if, in order to avoid being subject to the judgments of persons who were not of the true religion, certain arbiters were appointed both by the Jews and by the Christians, and the practice is commanded by Paul; how much more is this to be done, in order to avoid a much greater inconvenience, namely, war. So in one place Tertullian argues that a Christian must not go as a soldier, since he may not even go to law; which latter, however, as we have already shewn, is to be taken with a certain limitation.

275 4 And both for this reason and for others, it would be useful, and indeed it is almost necessary, that certain Congresses of Christian Powers should be held, in which the controversies which arise among some of them may be decided by others who are not interested; and in which measures may be taken to compel the parties to accept peace on equitable terms. This was the office of the Druids of old among the Gauls, as Diodorus and Strabo tell us: and we read that the Frankish kings left to their nobles the judgment of questions concerning the division of the kingdom.

IX. The third way is by Lot; which method is commended for this purpose by Dio Chrysostom, and much earlier by Solomon, Prov. xviii. 18. [The lot causeth contentions to cease, and parteth between the mighty.]

X. 1 Closely related to the practice of casting Lots, is the practice of Single Combat: of which the use does not appear to deserve altogether to be repudiated, if two persons whose controversies would otherwise involve two peoples in great evils are prepared to decide the question by arms, as formerly Hyllus and Echemus fought for Peloponnesus; Hyperochus and Phemius for the region on the Inachus; Pyræchma the Etolian and Degmenus the Epean for Elis; Corbis and Orsua for Ibas. For we may grant that if that be not done by the parties without blame on their part, yet that it may be accepted by the states in question as the lesser evil. So in Livy Metius says to Tullus, Let us take a course by which we may decide without great bloodshed in each people which shall govern the other. Strabo says that this was an ancient custom of the Greeks, and in Virgil, Eneas says it was right that the question between him and Turnus should be so decided.

2 Among the other customs of the Franks, this is especially the object of Agathias’s praise. He says that if their kings have any quarrel, the armies on each side are assembled and brought face to face, and then the kings are told to fight the matter out between themselves, and the two armies lay down their arms and mix like friends.

XI. But though in a doubtful case, both parties are bound to seek for conditions of compromise by which war may be avoided, the party which makes a claim is more bound than the party which is in possession. For that in parity of case, possession is a presumption, to be accepted as favourable, is a matter which agrees not only with civil but with natural law: of which we have given the reason from the Problems ascribed to Aristotle, [cap. v. § 12.] And we may here add, that he who knows himself to have a good cause, but has not sufficient documents to convince the possessor of the injustice of his possession, cannot lawfully make war; because he has not the right of compelling the other to give up possession.

276 XII. But when the right is ambiguous, and neither is in possession, or each is equally so, then if one of the parties refuse to divide the matter in question, he is to be reckoned unjust.

XIII. 1 From what we have said, we may decide the question moved by many writers, whether a war, regarded in reference to those who are the principal movers of it, can be just on both sides. We must distinguish various acceptations of the word just. A thing is called just from its cause, or from its effect. And again, from its cause, either in the special acceptation of justice, or in that general acceptation in which all rectitude or rightness comes under that name. Again, the special acceptation is divided into that which belongs to the act itself, and that which belongs to the agent; of which the former may be called positive, the latter negative. For the agent is sometimes said to act justly, when he does not act unjustly, although what he does be not just; as Aristotle rightly distinguishes, to act unjustly, and to do an unjust thing.

2 In the special acceptance of justice, as bearing upon the thing itself; a war cannot be just on both sides, as a lawsuit cannot. Because a moral claim to two contrary things, to act and to prevent the action, by the nature of the subject, cannot exist. But it may be that neither of the belligerent parties act unjustly: for no one acts unjustly except he who knows that he is doing an unjust thing: and many persons do not know this when it is so. Thus persons may carry on a lawsuit justly, that is, bona fide on both aides. For many points both of law, and of the facts from which the law arise, escape the notice of the parties concerned.

3 In a general acceptation, that is called just which is free from all fault of the agent. Many things are done without right, or done without fault, on account of inevitable ignorance; of which we have an example in those who do not observe the law, being ignorant of it without any fault of theirs, though it has been promulgated, and a sufficient time for their becoming acquainted with it has elapsed. So in litigation it may happen that both parties are free not only from injustice, but from all other vices; especially when both parties, or at least one, litigates not on his own account, but on that of another; as for instance, in consequence of the office of guardian or trustee, whose business it is not to desert a right which is only doubtful. So Aristotle says that in a doubtful question of law, neither side is bad; and Quintilian, that there are cases in which a good man may speak as an advocate on either side. Aristotle says too, that there are two senses in which we may say the judge judges rightly; the one, in which he judges as he ought according to the case, not making allowance for ignorance; the other, in which he judges sincerely as he thinks. To do this, as he says in another place, is not to judge unjustly.

4 But in war it cannot easily happen that there is not, on one side 277at least temerity and a lack of charity, the matter being so grave, that we ought not to be content with probabilities, but should require evident causes.

5 If we take just as to some legal effects, it is certain that in this sense a war may be just on both sides; as will appear by what we shall have to say hereafter of a penal public war. So a sentence of a judge, though given not according to law, and possession without right, have certain legal effects.