[403] CHAPTER XVIII.

Of acts done by Private Persons in a Public War.

I. 1 WHAT we have hitherto said, pertains, for the most part, to those who either have the supreme authority in war, or hold public offices. We must now consider what is lawful for private persons, according, respectively, to Natural Law, Divine Law, and the Law of Nations.

Cicero relates that Cato’s son served in the army of Pompilius till his legion was dismissed: that he then remained with the army as a volunteer; and that Cato wrote to Pompilius, that if he wanted to keep him in the army, he must make him take the military oath again; because the former oath being cancelled, he could not lawfully fight with the enemy. He adds also the very words of Cato’s letter to his son, warning him not to take part in the fighting. So we read that Chrysas, a soldier of Cyrus, was praised, because, when he had raised his sword to cut down an enemy, he lowered it on hearing the signal for a retreat. So Seneca.

2 But they are mistaken, who think that this rule comes from the external Law of Nations; for if you look at that, as any one has a right to seize an enemy’s property, as we have shewn above, so has he a right to kill the enemy: for in the eye of that law, enemies are held for nobodies. And therefore Cato’s doctrine comes from the military discipline of the Romans: of which the rule was, as Modestinus has noted, that he who did not obey orders, should be capitally punished, even if the act turned out well. And he was understood not to have obeyed orders, who had, out of the regular ranks, without the command of the general, fought with the enemy; as the orders issued by Manlius prove to us: on this account namely; that if such conduct were permitted, either posts would be deserted, or even, as the license went further, the army, or a part of it, would be implicated in casual combats, which was by all means to be avoided. So Sallust, speaking of the Roman discipline, says, In war those are often punished who, contrary to orders, have fought the enemy, or who, being ordered to 404retreat, have been slow in doing so. The Lacedæmonian who, when about to cut down an enemy, lowered his sword, on hearing the signal for retreat, gave the reason, It is better to obey a commanding officer than to kill an enemy. And Plutarch gives, as a reason why he who has left the army cannot lawfully kill an enemy, that he is not bound by that military law by which persons who engage in battle should be bound. And Epictetus, in Arrian, referring to the act of Chrysas just mentioned, says, So much better did he think it to do his officer’s will than his own.

3 But if we look to Natural Law and internal right or justice, it seems to be conceded, in a just war, to any one, to do any thing, which he considers will benefit the innocent party, within the just limits of warfare: but not to make captured property his own, because there is nothing owing him, except in the case in which he is exacting a just punishment by the common right of war. Which last, in what manner it is restricted by the Gospel Law, may be understood by what has been already said.

4 A mandate of a commanding officer may be either general or special: general, as in a tumult among the Romans, the Consul said, Who are for the safety of the republic follow me. And sometimes, even individual subjects have the right given of killing an enemy, even when not in self-defense, when it is expedient on public grounds.

II. 1 A special command may be given, not only to those who receive pay, but also to volunteers, who serve at their own charge, and who, what is more, support part of the charge of the war; as for instance, those who fit out ships, and support them at their own expense; and who are allowed, instead of pay, to appropriate their own captures, as we have elsewhere said. But how far this may be done without violating internal justice and charity, is a question not unworthy of discussion.

2 The justice of the case has respect, either to the enemy, or to the state with which such contract is made. We have already said that from an enemy, any possession which may feed the war, may be taken away for the sake of security; but this, under the onus of restoring it: and that the ownership may be taken, so far as compensation for what was either owing at the beginning of the war, or has become owing by some subsequent pact, to a state carrying on a just war; whether such possession belong to the hostile state, or to individuals, even innocent ones: and that the goods of guilty parties may, in the way of penalty, be taken from them and acquired by the captors. And thus, so far as the rights of the enemy are concerned, hostile property will become the property of those who carry on a part of the war at their own expense [Privateers], so far as the limit which has been stated is not exceeded; which must be estimated by an equitable opinion.

III. The internal justice of the case, with regard to the state for 405which the privateer acts, is satisfied if the contract be an equal one: that is, if the expense and danger be equal in value to the chance of prizes. For if this chance is much more valuable, the surplus ought to be given to the state; as if any one had beforehand purchased a haul of fish at an unusually low price.

IV. But even if justice strictly speaking be not violated, there may be an offense against the loving our neighbour, especially in a Christian view: as if it appear that such privateering will not hurt the general body of the enemy, or their king, or the guilty portion of them, but the innocent; and will inflict upon them calamities which it would be cruel to inflict, even on those who are personally indebted to us. And if, besides this, such a privateering warfare is not likely to conduce, either to the termination of the war, or to any notable damage of the enemy’s public power, then it must be considered unworthy a right-minded man, and especially a Christian, to make a gain in this way out of the unhappiness of the times.

V. It sometimes happens, that a private war grows out of a public one; as, for instance, if any one fall in with the enemy, and incur danger of life or goods; in which case the rules are to be observed which we have elsewhere stated, as to the lawfulness of defending one’s self. Also public authority is often conjoined with private utility; as if any one, having suffered some great loss from the enemy, should obtain authorization to reimburse himself out of the enemy’s property: and the right, in this case, is to be defined by what we have said above of pignoration.

VI. But if anyone, soldier or other, even in a just war, sets fire to buildings of the enemy, wastes the land, and inflicts damage of that kind, without orders, and we must add, when there is neither any existing necessity nor any just cause, he is bound to make good the damage, as is rightly laid down by theologians. But I have, for good reason, added a condition omitted by them, If there be not any just cause, for if there be such a cause, he may perhaps be responsible to his own state whose laws be has violated, but not to the enemy to whom he has done no wrong. On this, hear what a Carthaginian replied to the Romans, when they asked to have Annibal given up to them: Whether Saguntum was taken by public or by private act, is not the point, but whether it was taken rightfully or wrongfully. The question between us and our citizen it, whether he acted by his own motion or by our direction: the question between you and us is, whether what was done was lawful under our convention with you.