[368] CHAPTER X.

Warnings concerning things done in an unjust War.

I. 1 I MUST now tread back my steps, and take from belligerents nearly all, which I have seemed to grant them; and yet have not really granted; for when I began to explain this part of the Law of Nations, I testified that many things were said to be law, or lawful, because they are done with impunity; partly also, because coactive judgments of tribunals accommodate their authority to them: while the things themselves either deviate from the rule of right, (whether that rule be regulated by strict justice, or by the precepts of other virtues,) or at least, may more righteously and laudably be omitted.

2 We have often pudor, shame, referred to as moderating strict rights: pudormeaning, not so much a regard to reputation and men’s opinion, as a regard to what is equitable and good, or at least, more equitable and better. So Seneca. So in Justinian’s Institutes, Trusts (fideicommissa) are said to have for their bond the pudor of the Trustees. So Quintilian says the creditor cannot go to the surety, salvo pudore, except the debtor fails him. And in this sense pudor is often conjoined with justice, as in Ovid. So Hesiod conjoins δίκη and αἰδὼς. And Plato says that αἰδὼς is the assessor of δίκη. And in the Protagoras, he says that the two, δίκη and αἰδὼς, a feeling of justice and of mutual reverence, were given to man to hold society together. So Plutarch also, and Dionysius of Halicarnassus. So Josephus, and Paulus the Jurist. Cicero arranges the offices of justice, and verecundia, so that the former prevents us wronging men, the latter, offending them.

3 So Seneca Bays: How much wider is duty than law! and the like. Justice is distinguished from jus, law; for jus is what holds in external judgments. And elsewhere, he explains this by the example of a master’s right over his servants. We are not to consider what you may do, but what is required by justice and fairness, which require us to spare even captives and slaves. And again: Though everything is lawful towards a slave, there are things which common humanity declares not to be lawful. Whence note the two different uses of lawful, referring to external and to internal justice.

II. 1 The same distinction is made by Marcellus speaking to the 369Senate: by Aristotle, when he says that slavery, though lawful, may be unjust: by the Thebans in Thucydides.

2 So the Roman jurists, though they speak of the right of captivity, also call this right a wrong, injuria. So Seneca. So Livy says the Italians were obstinate in injury, because they retained what they had in war taken from the Syracusans. So Dio Prusæensis speaks of captives taken in war, as unjustly enslaved. So Lactantius says that philosophers, discussing the rights of war, do not regard justice and virtue, but the customs of states: and he speaks of the legitimate wrongs inflicted by the Romans.

III. First, then, we say, that if the cause of war be unjust, though the war be regular in manner, all acts thence arising are unjust, according to internal injustice. And all who operate knowingly in such acts, or co-operate, are in the number of those who cannot enter into the kingdom of heaven without repentance for their acts. Now repentance, if time and opportunity be granted, requires restitution. And therefore, God declares that the fastings of those who (Isaiah lviii. 6) do not unloose unjust bonds are not grateful to him. And (Jonah iii. 8) the king of Nineveh proclaimed a fast, that the people might cease from violence: acknowledging, by a natural impulse, that repentance was idle without such amendment. And such we find the judgment, not only of Christians and Jews, but of Mahomedans.

IV. The restitution is due, from the authors of the war, for all evils inflicted: and for anything unusual which they have done, or not prevented when they could. So the generals are responsible for what is done by their order; and the soldiers severally and jointly who have joined in any act; as the burning of a city: and in separable acts, each for what he did, or aided in doing.

V. 1 Nor do I conceive that the exception is to be admitted, of those who act for others, if they have committed any fault [with deceit, J. B.]; for to make restitution be proper, fault is enough without deceit. There are some who seem to think that things taken in war, even if there were no just cause of the war, are not to be restored, because the belligerents are understood to have given such things to the captors. But no one can be lightly presumed to set his property on a cast: and war of itself is far removed from the nature of a contract. And in order that neutral parties might have a clear rule to follow, and might not be involved in a war against their will, the introduction of that external ownership, of which we have spoken, was enough; which may consist with the internal obligation of restitution. So the Samnites, in Livy, give up what they had taken; which, they say, seemed ours by the right of war: seemed, because the war was unjust, as the Samnites had confessed.

2 It is a case of the same kind, that an unequal contract, made without deceit, gives, by the Law of Nations, a right of compelling the fulfilment of the compacts; and yet he who has the advantage, is bound by the duty of an honest and pious man, to reduce it to equality.

370 VI. I But also, he who has not caused any damage, or has caused it without any fault, but who has in his possession a thing taken in war from another, is bound to restore it, because there is no cause, naturally just, why the other should be deprived of it; not his consent; not his ill desert; not compensation. There is a story to this effect in Valerius Maximus: When P. Claudius had taken and sold the people of Camerina, although the money and the conquest were very advantageous, the Roman people sought them out and redeemed them, because the justice of the proceeding did not seem clear; and gave them a dwelling in the Aventine, and restored their property. So, by a decree of the Romans, the Phocenses had their liberty and land restored. So the Ligurians who had been sold by M. Popilius, were redeemed and restored to liberty, and their property given back. So with regard to the Abderites, the Senate decreed the same thing, adding the reason, that the war had been unjust.

2 But he who holds such property, if he have spent anything upon it, may deduct as much as it was worth to the owner to recover possession, as we have elsewhere explained. If the possessor have without fault consumed or alienated the thing, he is not bound, except so far as he is made richer.

[This and the succeeding chapters point out the Restraints which morality and religion impose on the exercise of Rights. That the exercise of rights will be restrained by morality and religion, wherever these prevail among men, is so obvious, that it does not need any large array of authorities to prove it: and the application of such views has, in some measure, modified the received usages of war among Christian nations. I shall, therefore, considerably abridge the illustrative matter in this part. Of the Laws of War so modified, see Elements of Morality, 1061 ⟦1st ed.: 1149?⟧, &c. W. W.]